IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE NINETEENTH DAY OF NOVEMBER TWO THOUSAND AND TEN PRESENT THE HON’BLE SRI JUSTICE G.CHANDRAIAH W.P. No.1180 AND 10970 of 2005 Between: P.Akkamahadevi and Saritha … Petitioners And The State of A.P., Represented by its Principal Secretary to Government, School Education Department, Secretariat, Hyderabad. … Respondents THE HONOURABLE SRI JUSTICE G.CHANDRAIAH W.P. Nos.1180 and 10970 of 2005 COMMON ORDER: Aggrieved by Memo No.13955/PS.1/2003-2, dated 19.12.2004, separate writ petitions have been filed by two different petitioners. Hence, both the writ petitions can be disposed of by passing common order. The petitioner in W.P. No.1180 of 2005 is P.Akkamahadevi, School Assistant Maths, Grade-II and the petitioner in W.P. No.10970 of 2005 is Saritha, Hindi Pandit Grade-I, both are working as teachers in Government Ravindra Model High School, Sadashivapet, Medak District. The case of the petitioners, in brief, is that in response to the advertisement of the Correspondent of Ravindra Model High School, the petitioners have applied and got selection by the Selection Committee in respect of the posts mentioned hereinabove against the names of the petitioners and a resolution was also passed approving their appointments. Further, the Correspondent of the said school informed about their appointments to the District Educational Officer and since then they are working as such. While things stood thus, in exercise of powers conferred in A.P. Education Act, 1982, the Government has taken over the management of the Ravindra Model High School along with 22 Grant-in-Aid posts with persons and all assets vide G.O.Ms. No.97, dated 23.07.2003. Though the petitioners are discharging their duties continuously, they have been paid only up to 30th September, 2003 and thereafter, no salaries have been paid to them, though their posts are Aided. Thereafter, the District Educational Officer submitted a report to the Commissioner and Director of School Education on 27.09.2003 and according to the said report, the posts mentioned against the names of the petitioners are vacant. However, in the said report it has been stated that the petitioners are working in the said posts from 28.07.1995 and 16.06.2003, respectively. Immediately after taking over the management of the school by the Government, the Correspondent of the school made a representation to the Secretary to Government requesting for absorption of the petitioners in the Aided posts and the petitioners also made separate representations dated 18.08.2003 seeking their absorption in the vacant Aided posts. In the representation made by the petitioners, it is stated to have been mentioned that one Smt. G.N. Geetha, who was also appointed without approval of the competent authority and working in St.Peters High School, Bandlines, Hyderabad, was absorbed into Aided post by relaxing the Government orders. Therefore, the petitioners have requested the Government to extend the same benefit to them. On the said representation, the Government directed vide its Memo dated 19.12.2003 to the Commissioner and Director of School Education to obtain and furnish the particulars of all such similar pending cases to the Government, so as to take a view in the matter, in turn, the said officials have directed the District Educational Officer to furnish the aforesaid information. The District Educational Officer vide letter dated 14.07.2004 informed the Commissioner and Director of School Education that there are no other similar cases for absorption into Aided posts except the cases of Ravindra Model High School, Sadasivapet. Without proper consideration of the above letters, the Government passed impugned Memo No.13955/PS.1/2003-2, dated 19.12.2004 rejecting the case of the petitioners on the ground that the Management has not followed the Government orders while appointing the petitioners. Therefore, the Memo under impugned is violative of Article 14 and 16 of the Constitution of India and the same is liable to be quashed, is the case of the petitioners. On behalf of the respondents, the 3rd respondent, District Educational Officer, filed a counter stating that the School Assistant Maths post fell vacant with effect from 03.07.1990 due to termination of one Sri N.Prabhu, who was sentenced to (2) years rigorous imprisonment by the Hon’ble High Court. The Aided School Assistant post of Maths was kept vacant. To meet with the acute subject need of the institution, the Management has appointed Smt.Akkamahadevi, B.Sc., B.Ed., (Maths) temporarily against the unaided post of School Assistant (Maths) by constituting a Management Committee only. No departmental Officer or nominee, as per the rules, attended the selection committee. The petitioner, Smt.Akkamahadevei, has reported to duty with effect from 28.07.1995 and worked continuously on consolidated salary as her appointment is on temporary basis. It is also submitted that her appointment was not approved by the competent authority in Un-aided post also as no Departmental nominee has attended the selection committee. It is further submitted that the District Educational Officer, Medak has already submitted a detailed report regarding absorption of Un- aided staff of the school vide Lr.No.14739/A4/2003, dated 27.09.2003 and the Government vide its Memo No.13955/P.1/2003-2, dated 21.12.2003 has rejected the request of the petitioners for absorption of the petitioners into Aided post as the Management has not followed the established procedure of recruitment as per law, secondly the posts are originally Un-aided posts and they had been filled without following due procedure i.e. Rule 12 of G.O.Ms. No.1 of Edn., dated 01.01.1994. It is categorically denied by the respondents that the petitioners are appointed and working as against the Aided posts. The learned counsel for the petitioners contended in respect of the petitioner in W.P. No.1180 of 2005 that one Sri N.Prabhu, who was working in the 4th respondent’s school as School Assistant (Maths), was involved in a criminal case and as a result, he was terminated from service and thereby a vacancy was arose. The 4th respondent School Management invited the applications from the eligible candidates and pursuant to which, the petitioner-P.Akkamahadevi, got selection by the Selection Committee and accordingly a resolution was passed on 28.07.1995 and the same was informed by the Correspondent of the School on 03.08.1995 to the District Educational Officer about her appointment as School Assistant (Maths) against the Aided post of School Assistant (Maths). Therefore, he contended that the petitioner-Akkamahadevi is appointed as against the Aided post of School Assistant (Maths). He also contended in respect of the petitioner in W.P. No.10970 of 2005 that one Sri G.V.Jagan, Hindi Pandit, Grade-I, was retired on attaining the age of superannuation and thereby a vacancy was arose. The 4th respondent School Management issued advertisement calling for applications for appointment as Hindi Pandit Grade-I in the month of June, 2003 and pursuant to which, the petitioner-Saritha, got selection by the Selection Committee and accordingly a resolution was passed on 14.06.2003 and the same was informed by the Correspondent of the School on 26.06.2003 to the District Educational Officer, Medak about her appointment as Grade-I, Hindi Pandit. The learned counsel further submitted in respect of both the petitioners that due to acute necessity arose in the 4th respondent School, the Management issued advertisements where the petitioners have got selected by the Selection Committee and non participation of the official member in the Selection Committee might be lapses on the part of the Management, which should not deprive the legitimate right of the petitioners claiming absorption, on the ground that the procedure was not followed by the Management at the time of appointment of the petitioners. Further it is also submitted that no orders have been passed by the authorities within a considerable period pursuant to the proposals dated 03.08.1995 and 26.06.2003 sent by the School Correspondent to the 3rd respondent seeking approval of appointments of the petitioners. It is also submitted that after a lapse of about 15 years, in respect of petitioner-Akkamahadevi and about 7 years, in respect of petitioner-Saritha, who cannot seek any employment anywhere, passing impugned Memo without proper consideration of the case of the petitioners is illegal and violative of principles of natural justice. Therefore, the case of the petitioners needs to be considered for absorption as the petitioners possesses the necessary requisite educational qualifications as on the date of their appointments and there are no adverse remarks in their service. He further submitted that when there was no participation of the Government nominee in the selection committee that is only an administrative lacuna, which can be cured with the powers vested with the Government, as was done in the case of Smt.G.N.Geetha by issuing proceedings vide Government Memo No.4112/PS.1/2002-1, dated 18.11.2002. Therefore, the case of the petitioners is also similar to that of Smt.G.N.Geetha, in favour of whom the power of relaxation was exercised by the Government and denial of the same, in respect of the petitioners, would amounts to discrimination and violative of Article 14 and 16 of the Constitution of India. Therefore, he submits that the impugned Memo dated 19.12.2004 is liable to be set aside. Eventually, he brought to the notice of this Court that the petitioners have not been paid for several months though they are working continuously. On the other hand, the learned Assistant Government Pleader, representing the learned Government Pleader, submitted that the appointment of the petitioners was not as per the procedure contemplated under G.O.Ms.No.1 Education, dated 01.01.1994 as no nominee was participated on the part of the Government in the Selection Committee and the petitioners were appointed by the Management only on its own, temporarily. Therefore, the petitioners have no right to claim that they have been appointed as against the Aided posts. Therefore, it cannot be said that rejecting the claim of the petitioners is illegal and therefore, the writ petitions are liable to be dismissed. Heard the learned counsel on either side and perused the material on record. At the out set, it is not in dispute that the Management of the 4th respondent School was taken over by the Government vide its G.O.Ms.No.97, dated 23.07.2003 considering the resolution dated 22.07.2002 of the Governing Body of the 4th respondent’s school along with 22 Grant-in-Aid posts with persons and all assets. It is also not in dispute that the petitioners are working in the 4th respondent’s School. But the dispute is that the petitioners are claiming absorption of unaided staff into the vacant aided posts available in the School at the time of take over the Management of the School. It is categorically submitted in the counter that the appointment of the petitioners was not approved by the competent authority in un-aided post also as no departmental nominee has attended the selection committee. Further, it is also categorically submitted that the Commissioner and the Director of School Education, is competent authority to settle any dispute regarding un-aided posts. The main submission of the learned counsel for the petitioners is that in the case of Smt.G.N.Geeta, the Government had relaxed the rules and permitted the Commissioner and Director of School Education to absorb but, though the case of the petitioners is also in the same footing, the Government is not extending the same benefit to the petitioners. From a perusal of the Memo dated 18.11.2002, relaxing the Rule 15 of the G.O.Ms.No.524 in the case of Smt.G.N.Geeta, it is mentioned that in the circumstances reported by the Commissioner and Director of School Education, Hyderbad, Government after careful examination and in relaxation of Rule 15 of the G.O.Ms.No.524, Education dated 20.12.1988 hereby permit the Commissioner and Director of School Education, Andhra Pradesh, Hyderabad to absorb Smt. G.N.Geetha, SGT of St.Peter’s High School Basheerbagh, Hyderabad in one of the aided vacant SGT in terms of the para 4(v) of G.O.Ms.No.45 Education (PS.1) Department dated 6.04.2001 and the Commissioner and Director of School Education, was requested to take necessary action accordingly. But it is not known from the above Memo that what are the circumstances reported by the Commissioner and Director of School Education, Hyderabad to come to a conclusion that the case of the petitioners and the case of Smt.G.N.Geetha are similar in nature. In view of the above, I am of the considered opinion that there is no dispute in respect of some factual position but there is some procedural error committed by the Management while recruiting the petitioners. Therefore, I am of the view that ends of justice would be met directing the respondents 1 to 3 to re-consider the case of the petitioners, if the facts and circumstances of the case of the petitioners and the case of Smt.G.N.Geetha are similar in nature. Having regard to the facts and circumstances of the case and the submissions made by the learned counsel on either side, the respondents 1 to 3 are directed to re-consider the case of the petitioners for absorption, taking into consideration the case of Smt.G.N.Geetha and pass appropriate orders, in accordance with law, within a period of two months, from the date of receipt of a copy of this order. However, it is brought to the notice of this Court that no salaries have been paid to the petitioners for several months though they are working continuously, if that is the case, the respondents are further directed to pay the salaries to the petitioners including arrears, if any, as per their eligibility. Accordingly, these writ petitions are disposed of. There shall be no order as to costs. _______________________ JUSTICE G. CHANDRAIAH Date: 19.11.2010 LSK