* THE HON’BLE SRI JUSTICE J.CHELAMESWAR AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN + WRIT PETITION NO : 9073 of 2003 % Dated 23-12-2005 # 1 V.V. Subba Rao, S.G. Teacher, M.P. Elementary School, Bhartipudi, Bapatla Mandal, Guntur District. and five others Peittioners Vs. $ 1The Commissioner and Director of School Education, Govt. of A.P., Hyderabad. and 200 others .....RESPONDENT(S) ! Counsel for the Petitioner: Mr. C.V.R. Rudra Prasad ^ Counsel for the Respondents: Mr. Kasajaganmohan Reddy <GIST: > HEAD NOTE: ? Cases referred 2003(6) ALD 522 (DB) 2AIR 1956 SC 520 3(1997)1 SCC 253 41993 Suppl. (3) SCC 9 5(1990)1 SCC 288 6AIR 1974 SC 1631 7AIR 1984 SC 161 8AIR 1965 SC 491 91973 Lab.I.C. 139 (APHC FB) 10(1997)7 SCC 592 11(1998)7 SCC 66 12(1995)2 SCC 326 13AIR 1971 SC 1021 14AIR 1979 SC 621 15 AIR 1966 SC 1942 16AIR 1967 SC 1910 17(1990)3 SCC 157 18(1992)2 SCC 36 19AIR 1974 SC 1 20AIR 1967 SC 1889 21(1995)1 SCC 745 22(1995)1 SCC 745 23(1995)1 SCC 727 24(1991)1 SCC 761 THE HON’BLE SRI JUSTICE J.CHELAMESWAR AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN W.P.Nos.9073, 14734 of 2003, 21864 of 2004, 20226, 23343, 23344, 23995 and 24607 of 2005 JUDGMENT: (per Hon’ble Sri Justice Ramesh Ranganathan) In these batch of writ petitions, the petitioners challenge the common order of the A.P. Administrative Tribunal, (hereinafter referred to as ‘the Tribunal’), in O.A.No.9635 of 2002 and batch dated 04.12.2002, wherein it was held that persons who had obtained the single subject certificate in english from the Dr.B.R. Ambedkar University were qualified to be considered for promotion to the post of school assistant (english), and since this certificate was in addition to the bachelors degree which the respondents herein, had already obtained from the University, the requirement of the rule, of possessing a bachelors degree, (with english as the main or one of the optional subjects), had been satisfied. The Tribunal further held that the clarification issued, by the Commissioner and Director of School Education, to the statutory rules was valid in as much as the Commissioner, as the head of the department, had the right to clarify the rules. Aggrieved by the order of the Tribunal, candidates who possess a bachelors degree with english, as the main or one of the optional subjects, have approached this court. Since facts, both prior to and subsequent to the order of the Tribunal dated 4-12- 2002, have been stated in detail in W.P.No.20226 of 2005, it would suffice if the facts referred to therein are taken note of. The statutory rules and government orders in force, during the relevant period, are also being referred to. Petitioners, secondary grade teachers (SGTs) selected in DSC 1996-1998 and appointed in Karimnagar District, claim to have put in between 7 to 9 years of service and to possess M.A. in English and B.Ed. in English methodology, which is amongst the prescribed educational qualifications, for appointment to the post of school assistant (english), under the A.P. School Education Subordinate Service Rules as amended from time to time. The A.P. Educational Subordinate Service Rules, notified in G.O.Ms.No.278 dated 20.6.1983, consisted of various classes, categories and grades of officers of the education department including that of school assistants grade II. Rule 2-A thereof, related to appointments and prescribed the method of recruitment in various categories. The method of recruitment to the post of school assistant grade II was both by direct recruitment and promotion. Rule 3 related to conditions of appointment and, under sub-rule (a) thereof, promotion was required to be made on grounds of merit and ability, seniority being considered only where merit and ability were approximately equal. Rule 7 related to qualification as to age. Rule 8, which related to other qualifications, provided that no person shall be eligible for appointment by any method specified in Rule 2(a), unless he possessed the qualification prescribed in column (2) of Annexure II. For school assistant grade II, the qualification prescribed, for appointment otherwise than by direct recruitment, was a degree of B.A, B.Sc. or B.O.L. of a University in the State and a teaching degree, and for direct recruitment it was B.A, or B.O.L of a University in the State in such subject or language as may be necessary, in the opinion of the Director of Public Instruction and teaching degree of a University in the State. In supersession of the rules in G.O.Ms.No.278 dated 20.06.1983, the A.P. School Education and Subordinate Rules were made and notified in G.O.Ms.No.40 dated 7.2.1992. Rule 2(2) thereof provided that the service shall consist of posts specified thereunder and under Class-C in category 1(b) were the posts of school assistants. The method of appointment was prescribed in Rule 3 and for the posts of school assistants it was both by (a) direct recruitment and (b) by promotion from qualified persons based on the combined seniority of the following categories in government and panchayat raj institutions: i. Secondary Grade Teachers; ii. Language Pandits Grade II; iii. Specialist Teachers and Instructors in classes F.G.H. and I of the rules; Rule 5 related to qualifications and for the posts of school assistants, by direct recruitment or by promotion or by appointment by transfer, the qualification prescribed was that the candidates must possess a bachelors degree in any subject and a B.Ed. degree from a University in India established or incorporated by or under a Central Act, State Act or Provincial Act or an Institution recognized by the University Grants Commission or an equivalent qualification. These rules, in G.O.Ms.No.40 dated 07.02.1992, were superseded by the Andhra Pradesh School Educational Subordinate Service Rules, in G.O.Ms.No.538 dated 20.11.1998, made in exercise of the powers conferred by Sections 78 and 99 of the A.P. Education Act 1982 and the proviso to Article 309 of the Constitution of India. Rule 2(ii) thereof provided that the service shall consist of the posts prescribed thereunder and under Category 1 (a) were the posts of school assistants. The method of appointment was (i) by direct recruitment, (ii) by promotion from categories 1 to 11 of Class III and (iii) recruitment by transfer from junior assistants and equivalent cadres of APMS under the control of the Director of School Education. The unit of appointment was the district and the qualifications prescribed for the category of school assistant, by promotion, direct recruitment or recruitment by transfer, was that the candidate must possess: “A Bachelor’s Degree in the subject concerned and a B.Ed. Degree in the subject concerned from a University in India established or incorporated by or under a Central Act, State Act or Provincial Act or an institution recognized by the University Grants Commission or equivalent qualification. Note: In schools having one section in each class from VIII to X class there will be three school assistants posts. They have to be designated as School Assistants (Maths), School Assistant (Science) and School Assistant (Social Studies). The qualifications for these posts are as given below. School Assistant (Maths) : He should have mathematics as one of the subjects when three optional subjects are equal or as main subject when main system exists. He must possess B.Ed. with Maths, as one of the methodology subject. School Assistant (Science): - Two of the following subjects in his graduation and B.Ed. with Natural Science/Physical Science as one of the methodology subjects. (Chemistry, Physics, Botony, Zoology) School Assistant (Social Studies): B.A./B.Com. with one of the following subjects in the graduation (Politics, Economics, History, Public Administration, Geography) and B.Ed., with Social Studies as one of the methodology subjects. Note: - In the case of high schools having multiple sections from 8 to 10 classes a cycle of school assistant (maths) School Assistant (Science) and School Assistant (Social Studies) shall be followed. In case two school assistants (Science) exist in a school one post may be filled by a person having Natural Science as one of the methodology subject and the second one shall be filled by a person having physical Science as one of the methodology subject in B.Ed. course.” While the earlier rules, including the rules notified in G.O.Ms.No. 538 dated 20.11.1998, provided for appointment to the posts of School Assistants both by way of direct recruitment and promotion, separate rules, called the “A.P. Direct Recruitment of Teachers (Scheme of Selection) Rules, 2000”, were notified in G.O.Ms.No.72 dated 3.7.2000, for appointment by direct recruitment to all categories of teachers in government, zilla parishad, mandal parishad schools etc. Rule 3 related to qualifications and method of recruitment and sub-rule(1) thereof read as under: “1. The candidate for selection to these posts shall possess the academic and professional qualifications prescribed in column (3) of Annexure to Special Rules for the Andhra Pradesh School Educational subordinate Services, issued in G.O.Ms.No.538 Education (Ser.II) Department, dt.20.11.1998, as may be amended from time to time. 2) The Recruitment shall be through a selection process consisting of Written Test, proportionate weightage to the marks secured in academic and professional qualifications prescribed for the post and other criteria stipulated by the Government from time to time. The total marks shall be 100. The details of allocation of marks for written test and weightages to different aspects for different categories of posts shall be as decided by the Government from time to time” The Rules, in G.O.Ms.No.538 dated 20.11.1998, were amended in G.O.Ms.No. 49 dated 14.5.2002 whereunder posts of school assistants were classified into five categories i.e., (i) school assistant (mathematics), (ii) school assistant (physical science), (iii) school assistant (biological science), (iv) school assistant (social studies) and (v) school assistant (english). The qualification prescribed therein, for school assistant (english), was a bachelor’s degree with english as the main subject or one of the optional subjects or a post graduate degree in english and a B.Ed degree with english as a methodology subject. The constitutional validity of the rules, as amended by G.O.Ms.No.49 dated 14.5.2002, fell for consideration before a Division Bench of this Court in W.P.Nos.17207 of 2002 and batch. While dismissing the batch of writ petitions, by order dated 9.10.2002, this court held that the government had sought to upgrade the secondary grade teachers posts to that of school assistants to provide subject- wise teachers in High Schools to impart quality instruction to the students and to achieve the required educational standards had prescribed subject-wise qualifications, and viewed from this perspective, when larger interest of the student community was sought to be served, individual interest should pave way for ensuring such larger interest. This judgment of the Division Bench of this Court was not noticed by the Tribunal in the impugned O.A.No.9635 of 2002 and batch. The Commissioner and Director of School Education, vide Memo Rc.No.3281/C3- 1/2002 dated 12.10.2002, issued clarifications, for conducting of promotion counseling to the posts of school assistants and its equivalent cadres, which all the District Educational Officers in the State were requested to follow. On the question as to whether candidates, who had obtained certificates from Dr.B.R.Ambedkar University, to the effect that they had passed english in degree course as a single subject, were eligible for promotion, it was clarified that such candidates could be considered for promotion as school assistants (english) if they had studied english as one of the methodology subjects in their B.Ed. course, as they were eligible as per Rules. Aggrieved by the said clarification, issued by the Commissioner in proceedings dated 12.10.,2002, O.A.9635 of 2002 was filed before the A.P. Administrative Tribunal. Similar relief was sought in O.A.No.9847 of 2002 and 9849 of 2002. All the O.As. were dismissed by the Tribunal, by its order dated 4.12.2002, holding that the clarification issued by the Commissioner was legal and just and that, as the Head of the Department, the Commissioner had the power to clarify the rules. Challenging the order in O.A.No.9847 of 2002 dated 4.12.2002, W.P.No.9073 of 2005 was filed before this court. The Association of Indian Universities, New Delhi, vide letter dated 3.1.2003, clarified that the certificate issued by Dr.B.R.Ambedkar Open University, Hyderabad of having passed english literature at the bachelor level may not be considered as equivalent to a degree in english literature. The University Grants Commission, vide proceedings dated 23.1.2003, informed that the certificate of english literature (four papers) issued by the Dr.B.R. Ambedkar Open University was not equal to a degree in english literature and even B.Sc./B.Com. degree holders, appearing in four papers in english literature, could not be considered as degree holders in english literature. In G.O.Ms.No.71 dated 7.6.2003, the rules in G.O.Ms.No.538 dated 20.11.1998, were amended. The amendment was an addendum under Note to Rule (1) which read as under: “In the case of teachers recruited before 14.5.2002, promotion to the post of School Assistant shall also be considered on the basis of their B.Ed., qualification in the subject methodology relevant to the post. However, their promotion will be subject to their acquiring the required qualifications as mentioned in these rules before 1.7.2005. If they do not acquire such qualifications by this date, they will be reverted to their original posts After 01.07.2005, only those teachers, who possess the qualifications prescribed in these rules for the posts of School Assistants in both the Degree and B.Ed. shall be considered for promotion.” In M. KESAVULU V. STATE OF A.P. (Judgment in W.P.No. 11325 of 2000 and batch dated 18.09.2003), while holding that the rules in G.O.Ms.No.538 was not sustainable in law and was liable to be set aside, this Court quashed G.O.Ms.No.538, Education Department dated 26.11.1998 restoring the rules framed by the Government in G.O.Ms.No.278 dated 20.6.1983. The rules in G.O.Ms.No. 72 dated 03.07.2000 were amended and notified in G.O.Ms.No.136 dated 13.11.2003. The qualification prescribed thereunder, for school assistant (english), was that the candidate must possess a bachelor’s degree with english as the main subject or one of the three optional subjects or a post graduate degree in english and a B.Ed. degree with english as a methodology subject. In response to the clarification sought by the University Grants Commission, in its letter dated 15.10.2003, the Dr. B.R. Ambedkar Open University, vide letter dated 13.11.2003, informed that it did not award a degree, for students who had passed in a single subject, but had only issued a pass certificate and that the students who registered in a single subject, already held a Bachelor’s or Master’s degree either from their University or from other universities, the facility was provided only to acquire knowledge in the area of their interest and that the university did not discriminate between degree holders of Dr.B.R. Ambedkar university and degree holders of other recognized universities. It was clarified that after successful completion of study, a student who registered in a single subject would not be awarded a degree, but would be given a marks certificate to the effect that he had passed in the subject he had registered. The Commissioner and Director of School Education, vide proceedings in R.C.No.2505/RC-3/2003 dated 5.2.2004, informed all the district educational officers in the State that, for the post of school assistants for DSC – 2003, applications received from candidates, who had obtained the single subject pass certificate in the relevant subject from the Dr.B.R. Ambedkar Open University, Hyderabad, in addition to the bachelor’s degree and B.Ed., as per G.O.Ms.No.136 Edn. Dated 13.11.2003, should be accepted. Contending that the clarification issued by the Commissioner, in proceedings dated 5.2.2004, was contrary to the qualifications prescribed, under the rules in G.O.Ms.No.136 dated 13.11.2003, for appointment to the post of school assistants (english) by direct recruitment, O.A.No.2935 of 2004 was filed before the A.P. Administrative Tribunal and the Tribunal, while admitting the said O.A., passed an interim order on 26.5.2004 directing that if the respondents propose to appoint school assistants in english, they shall do so as per the rules in force. The Director of School Education, vide letter dated 14.2.2005, requested the government to issue necessary amendment to the rules notified in G.O.Ms.No.136 dated 13.11.2003. The government, on clarification being sought for acceptance of the single subject certificate, informed the director of school education, vide memo dated 05.03.2005, that the proposal had been examined and that the established procedure should be implemented without any diversion in the matter, as the rules stood on 13.11.2003 (i.e., the rules notified in G.O.Ms.No. 136 dated 13.11.2003). This was reiterated by the government in its memo No.2368/Ser.VII/2005-2 dated 27.4.2005 whereby the director of school education was requested to follow the orders in the earlier memo dated 5.3.2005, and to implement the established procedure without any diversion in the matter, as the rules stood on 13.11.2003. The A.P. School Education Teachers and other Employees (Abolition of existing service cadres and Regulation of recruitment and conditions of service) Ordinance 2005 (A.P. Ordinance 12 of 2005) came into force with effect from 30.6.2005. It applies to all teachers working in government, mandal parishad and zilla parishad schools etc. Section 3 abolished the existing cadre of teachers and, under Section 5(1), restructured school education service cadres for teachers working in government, mandal parishad and zilla parishad schools was constituted. Section 9 gave overriding effect to the provisions of the Ordinance notwithstanding anything inconsistent thereto contained in any other law for the time being in force. Section 12 empowered the government, by notification, to make rules for carrying out all or any of the purposes of the Act. In exercise of the powers conferred by Sections 5 and 12 of A.P. Ordinance 12 of 2005, the A.P. School Educational Subordinate Service Rules were made and notified in G.O.Ms.No.96 dated 25.7.2005. Rule 2(ii) thereof provides that the service shall consist of classes and categories specified thereunder and in Class I category V are the school assistants (english). Rule 3 relates to the method of appointment and sub-rule (1) thereof provides that the method of appointment shall be as specified in columns (4) and (5). For the posts of school assistants (english) the method of recruitment is (1) by direct recruitment; (2) by promotion from categories 1 to 25 of Class III; and (3) recruitment by transfer from junior assistants and equivalent cadres. The qualifications prescribed for appointment to the post of school assistant (english) is a bachelors degree with english as the main subject or one of the optional subjects or a post graduate degree in english and a B.Ed. degree with english/post graduate certificate in teaching of english/post graduate diploma in teaching of english/as a methodology subject. The government fixed the schedule, for promotions counseling for the year 2005- 2006 for the post of school assistants (english), as the 1st and 2nd September, 2005. The district educational officers were directed to prepare the seniority list of secondary grade teachers who were eligible and qualified to be promoted to the post of school assistants (english), strictly in accordance with the educational qualifications prescribed in the rules notified in G.O.Ms.No.96 dated 25.7.2005. The seniority list did not include teachers who had obtained the single subject certificates in english from the Dr.B.R. Ambedkar University. Aggrieved thereby those teachers, who had obtained the single subject certificate in English from the Dr.B.R. Ambedkar University, approached the A.P. Administrative Tribunal and the Tribunal, while admitting the O.As., passed interim orders directing that the cases of such teachers be considered in terms of the judgment passed in O.A.No.9847/02 dated 4.12.2002. The promotions counseling scheduled to be held on 1st and 2nd September, 2005 was postponed indefinitely. The government, vide G.O.Rt.No.556 dated 4.10.2005, permitted the director of school education to appoint candidates having a bachelors degree, B.Ed. and the single subject certificate with four papers in the relevant subject at the bachelor’s degree level from Dr.B.R.Ambedkar Open University, to the posts of school assistants (language) in the relevant subject for DSC-2003, in relaxation of G.O.Ms.No.136 dated 13.11.2003, subject to certain conditions which included that the services of those candidates would be terminated if they did not acquire the qualifications prescribed for the post, as per G.O.Ms.NO.136 dated 13.11.2003, within a period of 5 years from the date on which the appointment order was issued and that they shall be eligible for regularization only after the qualifications, as prescribed under the rules, were acquired by them. Clause 6 specifically provides that these orders shall apply for DSC 2003 candidates only. The proceedings of the director of school education dated 4.10.2005 contains an extract of a copy of the memo No.18103/Ser.VI-1/2005 dated 3.10.2005. Clause 7 thereof relates to the single subject certificate course of Dr.B.R. Ambedkar Open University, Hyderabad/any other University and provides that the said certificate, issued after completion of the single subject course, was not a degree and that the single subject certificate holders of Dr.B.R. Ambedkar Open University or any other University were not eligible for promotion to the post of school assistant in the concerned subject. Sri V. Jagapathi and Sri C.V.R. Rudra Prasad, learned counsel for the petitioners, would submit that since the secondary grade teachers, who had obtained the single subject certificate in english from Dr.B.R. Ambedkar University, did not possess the educational qualifications prescribed under the statutory rules, in G.O.Ms.No.96 dated 25.7.2005, neither should they have been included in the seniority list for promotion to the post of school assistant (english) nor their certificates treated as equivalent to a degree in english. Learned Counsel would submit that the clarification issued by the Commissioner and the memos issued by the government, which are, at best, akin to executive instructions, cannot prevail over statutory rules nor could there be any deviation from or relaxation of the statutory rules in force. Learned counsel would refer to the clarification issued by the University Grants Commission, that the certificate course in english offered by Dr.B.R. Ambedkar University was not equivalent to a degree in english literature, and submit that the order of the Tribunal, in O.A.No.9847/2002 dated 4.12.2002, treating such certificates as equivalent to a degree in english literature, was contrary to law and as a consequence thereof, even a candidate, who had secured the minimum pass marks in his graduation in commerce, on obtaining the single subject in english from Dr.B.R. Ambedkar University, would be treated as equivalent to a graduate in english literature. Learned counsel would contend that english is an important subject taught at the higher secondary level, that educational standards cannot be diluted by appointing teachers not possessing the statutorily prescribed educational qualifications, and that the certificate issued by Dr.B.R. Ambedkar University has been the subject matter of widespread criticism as it has the effect of diluting the standards of education in government schools. Sri S. Ramachandra Rao, learned Senior Counsel, appearing on behalf of some of the respondents, would submit that they were all graduates in subjects other than english, they had english as the B.Ed. methodology and had undergone intensive training in english from the B.R. Ambedkar Open University. According to the learned Senior Counsel, even by the year 2002 more than 1500 teachers with a bachelors degree, B.Ed. and the single subject certificate in english from the Dr. B.R. Ambedkar University had already been promoted, their services regularized as school assistants and that these employees were working regularly for the past three years. He would refer to the proceedings of the Director dated 4.10.2005 wherein it was held that the single subject certificates holders were not eligible for promotion and submit that the said proceedings was suspended by the Tribunal in its order dated 6.10.2005. According to the learned Senior Counsel, except in Memo dated 4.10.2005, all the other government orders, the clarifications issued by the Commissioner and the proceedings of the district educational officers, would show that the single subject certificate holders in english from Dr.B.R. Ambedkar University were eligible to be considered for promotion to the post of school assistants (english). Learned Senior Counsel would submit that Andhra University and other Universities had been granting such certificates for the past several years, to enable persons to equip themselves to perform better, and contend that since the respondents were several years seniors to the writ petitioners, the certificate in english, from the Dr. B.R. Ambedkar University, must be