IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE FIRST DAY OF JULY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH WRIT PETITION No.31803 of 1998 Between: K.J.Krupanandam, S/o late K.Samuel, C.B.M.High School, Vishakapatnam. ..... PETITIONER AND 1 The Regional Joint Director of School Education, Kakinada, E.G.Dist. 2 The Dist.Educational Officer, Vishakapatnam. 3 The Correspondent, C.B.M.High School, Vishakapatnam. .....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, declaring the proceedings of the 1st respondnet in Rc.111-B2/97, dt.28-10-98 as arbitrary, illegal, capricious, violative of Art.14, 21 and 311 of the constitution of india, and consequently quash the impugned proceedings as ultravires and direct the respondents to promote the petitioner as School Asst. in Social Studies as per Judgement of this Hon'ble High court in WP No.1838/94, dt.5-2-96 in C.C.No.896/96, dt.3-6-97 and grant such other relief as this Hon'ble High Court may deem fit and proper. Counsel for the Petitioner:MR.K.JAGAN MOHAN REDDY Counsel for the Respondent No.: MR.K.RAMULU (ADD.CGSC) The Court made the following: Form-NIC-OGS/WP{JPK} THE HON'BLE SRI JUSTICE V.ESWARAIAH WRIT PETITION No.31803 of 1998 ORDER: One Mr.K.J.Krupanandam, Secondary Grade Teacher with the subject of Social Studies of C.B.M High School, Visakhapatnam dfiled the present writ petition, seeking a Writ of Mandamus declaring the order of the Regional Joint Director of School Education in Rc.No.111/B2/97, dated 28.10.1998 as illegal and arbitrary and without jurisdiction and also contrary to the earlier judgment of this Court in W.P.1838/1994, dated 05.02.1996 and order in Contempt Case No.896/1996, dated 03.06.1997. It is the case of the petitioner that one G.S.R.Prasad and the petitioner filed W.P.1838/1994, seeking a direction directing the 3rd respondent herein for giving promotion to them in two vacant posts of social studies assistants as per rules, and in terms of the interim orders of this Court dated 09.03.1992 passed in WPMP No.4028 and 4029 of 1992 and to promote G.S.R.Prasad w.e.f.01.01.1987 and petitioner herein w.e.f.01.01.1991 in the available vacant posts of school assistants. It is stated that the said writ petition was disposed of by order dated 05.02.1996 holding that the 1st petitioner therein i.e. G.S.R.Prasad was already promoted and in so far as the petitioner herein is concerned, it is stated that the District Educational Officer passed an order in Proceedings Rc.No.66/B4/92, dated 27.11.1995 directing the school to fill up the vacancy by promoting the petitioner herein, and accordingly, the writ petition was disposed of directing the 3rd respondent to implement the orders of the District Educational Officer. As the said orders passed in W.P.1838/1994, dated 05.02.1996 were not implemented, the petitioner herein filed a contempt case being C.C.No.896/1996, which was closed by order dated 03.09.1997 on the ground that the management sent proposals to the District Educational Officer vide letter No.CBMHS/CC/KJK/PR/97, dated 28.08.1997 for approval and in view of the said fact, as the proposals have already been made in compliance with the orders of this Court, the District Educational Officer was directed to approve the same without any delay, as long as his order stands. It is stated that the respondents filed a review petition with a petition to condone the delay, in which this Court by order dated 30.06.1997 while dismissing the said condonation delay petition, observed that as an appeal is said to have been filed to set aside the order of the District Educational Officer, but as long as the order of the District Educational Officer stands the direction in the writ petition stands and the respondent is bound to comply with the same by giving effect to that order of the District Educational Officer. Thus, it is stated that the direction of the District Educational Officer dated 27.11.1995 to fill up the vacancy by promoting the petitioner herein has become final and therefore, the petitioner is entitled to be promoted as School Assistant in Social Studies. It is further stated that the Regional Joint Director, School Education passed the impugned order dated 28.10.1998 informing the petitioner that there is no need to fill up of the vacant post of B.Ed.Asst. with that of S.S.B.Ed, as there is no vacancy and hence his request for promotion to the post of S.S.B.Ed. is not feasible for compliance. The petitioner questions the said order on the ground that the order of the Regional Joint Director, School Education is an order, setting aside the order of the District Educational Officer, dated 27.11.1995, directing to fill up the vacancy of the post of School Assistant in S.S.B.Ed by promoting the petitioner. It is further stated that in the absence of any appeal filed either by the 3rd respondent or by anybody, the Regional Joint Director cannot assume and presume the powers of the appellate authority and set aside the same as the appellate authority is only the Director of School Education under Sec.89 of the Andhra Pradesh Education Act, 1982 (hereinafter referred to as ‘the Act’). It is further stated that the impugned order passed by the Regional Joint Director of School Education is illegal and without jurisdiction and unsustainable as he cannot exercise the powers of the appellate authority as appellate authority is only the Director of School Education. Heard on either side and considered material available on record. The learned Government Pleader appearing for the respondents submits that the impugned order is not an order passed in exercising the powers of the appellate authority under Sec.89 of the Act, but it is only an order disapproving the proposals and disagreeing the recommendation made by the Director of School Education to fill up the post of School Assistants in S.S.B.Ed. as there is no vacancy in S.S.B.Ed in the school. It is further stated that under Andhra Pradesh Educational Institutions (Establishment, Recognition, Administration and Control of Schools under Private Managements) Rules, 1993 issued under G.O.Ms.No.1, Education (P.S.2) dated 01.01.1994, the competent authority for approval the appointment of the School Assistant is the Regional Joint Director of School Education. A perusal of the impugned order goes to show that it is not an order passed in any appeal as contemplated under Sec.89 of the Act. Admittedly, the 3rd respondent did not file any appeal before the appellate authority. A perusal of the impugned order passed by the Regional Director goes to show that the writ petition filed by the petitioner in W.P.1838/1994 which was disposed of on 05.02.1996 directing the 3rd respondent to implement the orders of the District Educational Officer dated 27.11.1995. The orders of the District Educational Officer dated 27.11.1995 is only a direction directing the 3rd respondent to fill up the vacancy by promoting the petitioner herein. Admittedly, the petitioner was not at all appointed as School Assistant by the 3rd respondent school at any point of time. For the first time, the 3rd respondent School submitted proposals to the District Educational Officer by letter dated 28.08.1997 proposing the petitioner for promotion to the post of Social Studies B.Ed.Assistant. The competent authority for approving the said proposal is only the Regional Joint Director as the 3rd respondent being the high school. Therefore, the approval or disapproval by the competent authority cannot be said that it was passed in exercise of powers of the appellate authority and set aside the orders of the District Educational Officer. The orders of the District Educational Officer dated 27.11.1995 did not confer any right on the petitioner as it was only a direction to the 3rd respondent to fill up the post by promoting the petitioner. It is the case of the 3rd respondent school that there is no vacant post so as to enable them to promote the petitioner, as such the Regional Joint Director refused to accept the proposals of the management to fill up the post for the reasons that there are 15 sections existing in the school and the posts of the subject wise school assistants shall be in the ratio of Maths-5, Science-5, Social Studies-5. It is further stated that there are six social studies B.Ed.Assistants already working in the school and therefore, adding one more B.Ed.Assistant will be contrary to the prescribed subject wise ratio as per the guidelines issued in Proceedings No.2611/G4/90, dated 07.08.1990 and proceedings in Rc.No.787/D1-2/92, dated 24.06.1992 of the Director of School Education. As per the said guidelines, the posts of B.Ed. Assistants have to be filled in subject wise in the ratio of Maths-1, Science-1 and Social Studies-1. It is further stated that only 5 school assistants were appointed in Mathematics and Science and where as in Social Studies six school assistants were appointed and therefore, there is no vacancy and the petitioner is not at all entitled to be appointed as B.Ed.Assistant (Social Studies. Accordingly, the orders of the District Educational Officer, dated 27.11.1995 were set aside and the District Educational Officer is directed to take disciplinary action against the Inspecting Officer who has recommended for filling up of the posts of B.Ed.Assistants with S.S.B.Ed. without following the orders of the Director of School Education and the petitioner was informed stating that his request for the appointment of S.S.B,Ed.Assisnt cannot be considered as there is no vacancy. I am of the opinion that merely because of the order of District Educational Officer is set aside, it cannot be said that the order passed by the Regional Director is in exercise of powers under Sec.89 of the Act and it is an order passed under Rules he being the competent authority to approve the appointment of School Assistants. Therefore, I am of the opinion that the impugned order does not suffer from any illegalities or infirmities warranting interference. Having regard to the facts and circumstances of the case, the Writ Petition is dismissed. No order as to costs. _____________________ V.ESWARAIAH,J Dated: 01.07.2008 Dsr .... REGISTRAR // TRUE COPY // SECTION OFFICER To 1 The Regional Joint Director of School Education, Kakinada, E.G.Dist. 2 The Dist.Educational Officer, Vishakapatnam. 3 The Correspondent, C.B.M.High School, Vishakapatnam. 4 2. 2CCs to 5. 2CD copies