*HON’BLE SRI JUSTICE P.S. NARAYANA HON’BLE SRI JUSTICE G. BHAVANI PRASAD +Review W.P.M.P. No.6161 of 2006 in W.P. No.12693 of 2004 %12/03/2010 # Commissioner & Director of Intermediate Education, A.P., Hyderabad and others .. Petitioners And $ T. Satynam Naidu and others .. Respondents ! COUNSEL FOR THE PETITIONERS: Government Pleader for Higher Education ^ COUNSEL FOR RESPONDENTS: Sri P.S. Rajasekhar < Gist : Ø Head Note: ? CITATIONS: 1. 2009 (5) ALD 58 (SC) HON’BLE SRI JUSTICE P.S. NARAYANA HON’BLE SRI JUSTICE G. BHAVANI PRASAD Review W.P.M.P. No.6161 of 2006 in W.P. No.12693 of 2004 ORDER: (per Justice G. Bhavani Prasad) O.A. No.4001 of 1996 was filed by respondents 1 to 3 herein before the Andhra Pradesh Administrative Tribunal to quash the proceedings dated 17-06-1996 of the 2nd petitioner herein and to direct the official respondents in the Original Application to continue respondents 1 to 3 herein as attenders in the pay scale of Rs.1375 - 2525 and also to revise their pay scales in accordance with 1986 and 1993 revised pay scales. The Tribunal held that the memo dated 17-06-1996 cannot be sustained and the pay of respondents 1 to 3 herein has to be revised as per the regularization done earlier as attenders with notional benefits up to the date of filing of the Original Application and with monetary benefits thereafter, which exercise has to be completed within three months. The 1st petitioner herein filed W.P. No.12693 of 2004 challenging the said order and this Court disposed of the same on merits by its order, dated 01-02-2005 after noting the contentions of the rival parties and counsel in detail. The order delivered by one of us (Hon’ble Sri Justice P.S. Narayana) noted that respondents 1 to 3 herein were appointed by the Principal of Government Junior College, Kurupam as attenders on 21-09-1984, during which period there was a ban on appointment of regular attenders. The Government also issued G.O.Ms. No.307, dated 06-06-1984 to enable conversion of full time contingent posts into Class IV posts, if the incumbents worked in the posts for a period of ten years continuously and as the appointment of respondents 1 to 3 herein was contrary to the said Government orders, on the direction of the Regional Joint Director, the Principal reverted respondents 1 to 3 herein as part time contingent staff by proceedings, dated 20-04-1987. Then they filed R.P. No.2786 of 1987 before the Tribunal, which was ordered on 28-01-1993 directing making of representation and its consideration, till the disposal of which, respondents 1 to 3 herein were directed to be continued as attenders. When the State Government rejected the request of respondents 1 to 3 herein for appointment as attenders and deemed them to be working as part time contingent staff only by the impugned memo dated 17-06-1996, respondents 1 to 3 herein filed O.A. No.4001 of 1996. The memo was suspended by the Tribunal by an interim order, dated 24-07-1996 and final orders were passed on 15-04-2003 directing fixation of pay of respondents 1 to 3 herein as attenders since regularization done earlier with notional benefits up to the date of filing of the Original Application and monetary benefits thereafter, which exercise was directed to be completed within three months. The Tribunal considered G.O.Ms. No.792, Education Department, dated 13-09- 1982 permitting the opening of the Government Junior College and sanctioning six posts of attenders and the appointment of respondents 1 to 3 herein contrary to the instructions of the Director of Higher Education. But as the instructions not to fill up the posts were issued by an authority subordinate to the Government, while the posts were sanctioned by the Government, the Tribunal considered the appointment of respondents 1 to 3 herein to be not irregular or illegal. However, this Court considered that the Director of Intermediate Education is the head of the Wing, whose directions could not have been ignored by the Principal and extended the benefit of G.O.Ms. No.38, dated 01-02-1980 to respondents 1 to 3 herein to enable them to be treated as regular attenders after a period of ten years. As respondents 1 to 3 herein were treated as contingent staff only earlier, they were considered entitled to be treated as regular attenders with all the benefits flowing there from in terms of G.O.Ms. No.38 and it was also directed that no recoveries of any excess amounts paid during the period of ten years from the date of their appointment in 1984 until the expiry of ten years, should be effected, as respondents 1 to 3 herein were discharging their duties throughout. The order of the Tribunal was modified accordingly and the writ petition was allowed in part. The complaint of the writ petitioner is that when once the Court recognized the power of the writ petitioner to pass orders and also the possibility of appointing only three contingent employees as per the proceedings of the Director and Regional Director, any direction to convert respondents 1 to 3 herein as regular attenders after expiry of ten years of service could not have been issued in the absence of any vacancies in the cadre of attenders. Even G.O. Ms. No.38 does not contemplate any such conversion into regular attender posts automatically in the absence of clear existing vacancies in that cadre and hence, it is desired that the order of the Division Bench be reviewed. The learned counsel for both parties are heard at length. The point for consideration is whether there is any ground for review of the order of this Court, dated 01-02-2005 ? Point: The Government of Andhra Pradesh sanctioned the opening of Government Junior College, Kurupam in Vizianagaram District during 1982-83 by G.O. Ms.No.792 Education (V) Department, dated 13-09-1982, under which among others, six posts of attenders were sanctioned from the date of filling up of the posts with usual scales of pay and allowances admissible to them under the rules. Respondents 1 to 3 herein, who were sponsored by the employment exchange, were interviewed by a committee and were appointed as attenders by proceedings, dated 14-09-1984. The Principal later regularized their services as attenders with effect from 21-09-1985 by his proceedings dated 25-09-1985. However, by virtue of the directions of the Regional Director of Higher Education, Rajahmundry, respondents 1 to 3 herein were converted into part time employees with effect from 20-04-1987 obviously without any notice to or opportunity of hearing given to them. Respondents 1 to 3 herein filed R.P. No.2786 of 1987 before the Andhra Pradesh Administrative Tribunal, which granted interim suspension of the order of the revision on 12-05-1987 and ultimately the Tribunal ordered on 28-01-1993 submission of a representation by respondents 1 to 3 herein and its consideration on merits by the authorities. Though the posts of attenders themselves continued to exist as seen from G.O.Rt. No.101, Education (I.E.2) Department, dated 31-01-1996, the request of respondents 1 to 3 herein was rejected by the impugned memo dated 17-06-1996 on the ground of appointment of respondents 1 to 3 herein by the Principal being not in accordance with the rules in force, which prohibited appointment of full time contingent employees during the relevant period. However, the memo itself recognized that the system of appointment of part time employees was in force and it is also clear that respondents 1 to 3 herein were not even remotely at fault in the entire episode and it was the alleged violation of instructions of the Director by the Principal that is sought to be pressed into service to prejudice their claims to be treated as attenders, the duties of which posts they were admittedly discharging throughout. While the posts of attenders sanctioned under G.O.Ms. No.792 themselves were never converted by any specific order into full time contingent posts or part time contingent posts, factually services of respondents 1 to 3 herein were obviously utilized full time and not part time. G.O.Ms. No.317 Education, dated 06-06-1984 is about conversion of full time contingent posts into Class-IV staff, but not about Class-IV posts themselves, if they were sanctioned and are in existence throughout. G.O. Ms. No.317, G.O.Ms. No.193, G.O.Ms. No.212, etc., referred in the pleadings providing for conversion of contingent posts into regular posts of last grade service from time to time are the reflection of the consistent policy of the State Government to extend the benefit of regularization and conversion to those working continuously for the specified periods as contingent employees satisfactorily. In the present case, it is not even due to the orders of the State Government that the filling up of the sanctioned three posts of attenders was considered irregular. Even the instructions of the Director not to fill up the posts were not stated to be due to suspension of sanctioning of these three posts at any time and the services of respondents 1 to 3 herein as attenders were regularized much before the direction to convert them into part time contingent employees. The sanction of six posts of attenders under G.O.Ms. No.792, dated 13-09-1982 was attempted to be canvassed as contrary to the general staffing pattern for junior colleges prescribed by the Government in G.O.Ms. No.2063 Education, dated 25-08-1969, but if the Government in exercise of its administrative power deviated from its earlier administrative order, the same is no illegality and when the six posts of attenders to the Junior College were sanctioned much subsequent to the ban on appointment of contingent employees since 01-04-1981 under G.O.Ms. No.375, it was a conscious decision of the Government within its power and jurisdiction. The direction to fill up three posts with part time contingent employees was subsequent to the appointment and regularization of respondents 1 to 3 herein as attenders. In spite of the above factual background, this Court took into account that the writ petitioner is the head of the department, whose directions could not have been ignored and to achieve the cause of substantial justice, had extended the benefit of G.O.Ms. No.38 Finance and Planning (Finance Wing PRC-VI) Department, dated 01-02-1980, under which full time contingent posts created under specific Government Orders and in existence for ten years or more and required to be retained on a permanent basis, were directed to be converted into regular Government posts in the last grade service. The case of respondents 1 to 3 herein, in fact, stands in a better footing, as not only the posts of attenders were created under specific Government Orders and have been in existence for more than the prescribed period and are obviously required to be retained on a permanent basis, but also even the original sanctioned posts were regular Government posts in the last grade service and not contingent posts, full time or part time. It was only the instruction of the Director to fill up those posts with part time contingent appointments that was relied on by the writ petitioner. When even the subsequent orders of the department were only to treat respondents 1 to 3 herein as part time contingent employees since inception and as it is and cannot be in dispute that they were performing full time duties throughout, extending the benefit of G.O.Ms. No.38 and also directing not to effect any recoveries of any excess amounts paid, are no way offending either any power or jurisdiction of the Government or the Head of the Department or any particular orders in this regard and it cannot be considered that the order of this Court is vitiated due to the absence of any existing vacancies of posts of attenders, as the original sanction in 1982 and the subsequent extension in 1996 by specific Government Orders belie any such contention. Extending the benefit of conversion under G.O.Ms. No.38 cannot, therefore, be considered to be a mistake or error apparent on the face of the record or to be vitiated by the discovery of any new and important matter or evidence or for any other sufficient reason. Such review jurisdiction is recognized to be very restricted in scope and content and does not appear available in the present case. Reference was also made to Manjula Bhashini v. M.D., A.P. Women’s Co-operative Finance Corporation Limited[1] with reference to the provisions of Andhra Pradesh (Regularization of Appointments to Public Services and Rationalization of Staff Pattern and Pay Structure) Act, 1994 as amended from time to time. G.O.Ms. No.212, dated 22-04-1994 and G.O.(P) No.112, dated 23-07-1997 were also referred to in the decision, which upheld the policy of regularization adopted by the Legislation and the Government Orders. However, the Act was enforced with effect from 25-11-1993 and G.O. Ms. No.212 and G.O.(P) No.112 were also with reference to full time or part time employees working continuously for a period of five years or ten years respectively as on 25-11-1993. In the present case, the posts of six attenders in question, of which three were filled up by respondents 1 to 3 herein, were sanctioned on 13-09-1982 and the conversion of full time contingent posts into regular Government posts into last grade service ordered by G.O.Ms. No.38 applied to the posts in existence for a period of ten years having been created under specific Government Orders and required to be retained on a permanent basis. The three posts answering such description ought to have been converted into regular Government posts much prior to A.P. Act 2 of 1994 or G.O.Ms. No.212 or G.O. (P) No.112 coming into force, and the same is no way affected adversely by the subsequent Statute or Government Orders. Therefore, A.P. Act 2 of 1994 or G.O.Ms. No.212 or G.O. (P) No.112 can have no relevance to the validity of the impugned order sought to be reviewed and thus, in any view, the review petition has to fail. Accordingly, the review petition is dismissed. No costs. _________________ P.S. NARAYANA, J _____________________ G. BHAVANI PRASAD, J Date: 12-03-2010 Note: L.R. copies to be marked. (Bo) Svv [1] 2009 (5) ALD 58 (SC)