THE HON’BLE Ms. JUSTICE G. ROHINI Writ Petition No. 7641 of 2009 Dated: 01.04.2010 Between: S.k.Abudl Latheer, Kurnool District. … Petitioner And The State of A.P., rep., by its Secretary, Hyderabad and 3 others. … Respondents THE HON'BLE Ms. JUSTICE G.ROHINI Writ Petition No. 7641 of 2009 O R D E R : The petitioner herein was appointed in an unaided SGT post (Telugu) in the Siddiqui Aided Elementary School, Nandyal being run by the 4th respondent-Management on 04.12.1998. It is not in dispute that he was appointed after being selected by the duly constituted selection committee and after obtaining the approval of the 3rd respondent-District Educational Officer. Subsequently, the petitioner was absorbed into an aided vacancy and was posted at SAUUP School, Jillella and the same was approved by the 3rd respondent vide proceedings dated 31.12.2004. However, under the impugned proceedings of the 3rd respondent dated 25.02.2009, the earlier order dated 31.12.2004 was cancelled resulting in reversion of the petitioner to un-aided SGT post. Aggrieved by the same, the present writ petition is filed. It is to be noticed that the 4th respondent-Management is running many Schools at various parts of Kurnool District including Sirivel, Cement Nagar, Nandyal and Jillella. While so, the School at Cement Nagar was closed and consequently two SGT posts (aided) at Cement Nagar school were ordered to be transferred to the School at Sirivel vide proceedings of the 3rd respondent dated 26.06.2004. One of the said two posts was transferred along with the teacher for Urdu medium section. So far as the other aided post transferred to Sirivel was concerned, one S.Mahaboob Sharief who was the senior most among the unaided teachers in Telugu medium was proposed to be absorbed by the 4th respondent-Management and the proposals dated 29.06.2004 were sent to the 3rd respondent for ratification. While the matter was under consideration by the 3rd respondent, three more vacancies in aided posts arose due to retirements/promotions of teachers in aided posts. Those three aided posts were filled up by three unaided teachers including the petitioner. The proposals dated 16.10.2004 submitted by the 4th respondent-Management for absorption of the petitioner in the aided post at SAUUP School at Jillella was approved by the 3rd respondent vide his proceedings dated 30.12.2004. Pursuant thereto, the petitioner has been discharging his duties in the aided SGT post in the School at Jillella. While so, the 3rd respondent by order dated 01.02.2006 directed the 4th respondent-Management to send back the junior most person who was absorbed from unaided to aided SGT post. Since the petitioner was the junior most person and his absorption into aided vacancy was sought to be cancelled, the petitioner filed W.P.No.3414 of 2006 seeking a declaration that the order of the 3rd respondent dated 01.02.2006 was arbitrary and illegal. The said writ petition was disposed of by this Court by order dated 30.04.2008 holding that the proceedings dated 01.02.2006 directing cancellation of the absorption of the petitioner in an aided vacancy without notice to him was illegal. It was also observed by this Court in case the District Educational Officer finds it necessary to cancel the absorption of the petitioner or any other teacher, he shall be under an obligation to issue notice to them. Accordingly, the order dated 01.02.2006 was set aside and it was left open to the 3rd respondent to issue notice to the petitioner or other affected parties as well as the Management in case it was necessary to cancel their absorption. In pursuance of the said order in W.P.No.3414 of 2006, a show cause notice was issued to the petitioner on 03.01.2009 calling upon him to show cause as to why his services should not be terminated from aided post. In response to the same, the petitioner submitted his explanation and after considering the same by order dated 25.02.2009 the District Educational Officer cancelled the earlier order dated 31.12.2004 under which the petitioner was absorbed in an aided vacancy. Aggrieved by the said order dated 25.02.2009, the present writ petition is field. In the counter affidavit filed on behalf of the respondents 1 to 3 it is stated that the proposals submitted by the 4th respondent- Management for absorption of Sri S.Mahaboob Sharief, in the aided SGT post which was shifted from Cement Nagar School to M.S.A Upper Primary School, Sirivel were returned by the 3rd respondent vide proceedings dated 18.10.2004 raising two objections and aggrieved by the same, he filed W.P.No.21433 of 2004. The said writ petition was allowed by this Court by order dated 16.03.2005 holding that the objections raised by the District Educational Officer were unsustainable and accordingly directing the District Educational Officer to take appropriate decision in pursuance of the proposals submitted by the Management without adverting to the objections raised in the impugned order dated 18.10.2004. Pursuant thereto, the 3rd respondent passed the order dated 01.02.2006 directing the 4th respondent-Management to send back the junior most person who was absorbed from unaided to aided post by overlooking the seniority of Mahaboob Sharief (petitioner in W.P.No.21433 of 2004). Aggrieved by the said order, the writ petitioner filed W.P.No.3414 of 2006 which was disposed of by order dated 30.04.2008 leaving it open to the respondents to issue notice to the affected parties and then pass appropriate orders. Accordingly, a show cause notice was issued to the petitioner on 29.01.2009 and in response to the same, the petitioner submitted his explanation dated 04.02.2009. After considering the said explanation, the impugned order dated 25.02.2009 came to be passed cancelling the earlier order dated 31.12.2004. It is contended that the impugned order was rightly passed in view of the ban orders imposed by the Government dated 20.10.2004. More over, as there were only three vacancies of aided posts, the absorption of the petitioner who was the junior most, was rightly cancelled. I have heard the learned counsel for both the parties and perused the material available on record. Despite notice, the 4th respondent-Management did choose to appear. On a careful consideration of the material available on record, it is clear that one vacancy to the SGT aided post in Telugu Medium arose pursuant to the transfer of two aided SGT posts to the Upper Primary School, Sirivel on closure of the Elementary School at Cement Nagar. The order to the said effect was passed by the 3rd respondent on 26.06.2004 wherein it was made clear that out of the two posts transferred, one post for Urdu Medium was transferred along with the candidate and the other vacant aided post for Telugu Medium had to be filled up by the 4th respondent-Management. By that time, four persons were working in SGT unaided posts in the Schools functioning under the management of the 4th respondent. It is not in dispute that one S.Mahaboob Sharief was the senior most whereas the writ petitioner was the junior most among the teachers working in four SGT unaided posts. In the circumstances, the 4th respondent-Management submitted proposals dated 06.07.2004 for absorption of the senior most person i.e. S.Mahaboob Sharief in the aided vancancy (i.e. in the post transferred from Cement Nagar to Sirivel). In turn, the proposals were submitted vide proceedings dated 06.07.2004 of the Deputy Inspector of Schools, Kurnool, seeking approval of the 3rd respondent. The said proposals were returned by the 3rd respondent on 18.10.2004 raising two objections. Both the said objections were declared by this Court as unsustainable while allowing W.P.No.21433 of 2004. By order dated 16.03.2005 in W.P.No.21433 of 2004 this Court specifically directed the 3rd respondent herein to take appropriate decision to absorb the petitioner therein (S.Mahaboob Sharief) into newly shifted aided post in accordance with law within a period of four weeks. In the meanwhile, three more SGT aided posts fell vacant by October, 2004 and the proposals submitted by the 4th respondent- Management for absorption of the next three unaided SGT teachers into the said three vacancies were approved by the 3rd respondent on 31.12.2004. Thus, the writ petitioner and two persons placed above him in the unaided posts were absorbed in the aided SGT posts in the year 2004 itself. As noticed above, W.P.No.21433 of 2004 was allowed on 16.03.2005 and in terms of the directions of this Court, the 3rd respondent vide proceedings dated 01.02.2006 accorded permission to absorb S.Mahaboob Sharief (petitioner in W.P.No.21433 of 2004) in the aided SGT post. Surprisingly, instead of absorbing him in the SGT aided post transferred from Cement Nagar School to Sirvel, the 3rd respondent sought to accommodate him in one of the three aided posts, which fell vacant subsequently on promotions/retirements of the teachers working in aided posts. The order dated 01.02.2006 was absolutely silent as to the vacancy that arose on the shifting of the aided post from Cement Nagar to Sirivel. No reason is forthcoming even in the counter affidavit filed before this Court by the respondents 1 to 3 for not absorbing S.Mahaboob Sharief in the said vacancy. As a matter of fact, while allowing W.P.No.21433 of 2004, there was a specific direction by this Court to absorb the petitioner therein (S.Mahaboob Sharief) into the newly shifted aided post. Since the two objections raised by the 3rd respondent for approving such absorption were declared untenable by this Court, there was no option to the 3rd respondent except to absorb the petitioner therein in the aided post which was transferred from Cement Nagar to Sirivel. Instead of adopting such procedure, the 3rd respondent sought to accommodate the petitioner in W.P.No.21433 of 2004 in the three vacancies that arose subsequently due to promotions/retirements. Consequently, the 4th respondent-Management was directed to send back the junior most person (petitioner herein) who was absorbed into aided post. In terms of the order of this Court in W.P.No.3414 of 2006 though a show cause notice was issued giving an opportunity to the petitioner to submit his explanation as to why his absorption into aided post should not be cancelled, the 3rd respondent passed the impugned order assigning fresh reasons for cancelling the absorption of the petitioner into aided post. One of the reasons assigned was that as per the work load of the Schools of the 4th respondent-Management only 14 aided posts were required whereas 17 aided teachers were already working. Thus, it was concluded that since three posts were surplus there was no need to fill up one more aided SGT post. The above stand was sought to be justified in the impugned order by giving the details of the teacher pupil ratio in the School. The second reason shown was that the petitioner was absorbed into the aided vacancy on 31.12.2004 after ban orders were issued by the Government dated 20.10.2004. On a careful consideration of the facts and circumstances, I am of the opinion that both the grounds upon which the impugned order was passed are untenable. So far as the first ground is concerned, it is to be noticed that even according to the 3rd respondent, 18 aided sanctioned posts are existing in the four Schools managed by the 4th respondent out of which only 17 aided teachers are working. Thus, there is a clear vacancy of one aided post. Even assuming that there is no need for as many as 18 aided posts as per the teacher pupil ratio in the Schools, it is necessary to take steps as provided under law for reducing the sanctioned posts. As a matter of fact, the 3rd respondent himself while transferring two aided posts from Cement Nagar to Sirivel vide proceedings dated 26.06.2004 observed that the said two additional posts were essential at Sirivel. It is also not in dispute that the said order dated 26.06.2004 transferring the two vacant posts from Cement Nagar to Sirivel has not been rescinded nor withdrawn till today. In the circumstances, as rightly submitted by the petitioner four vacancies in the aided SGT posts were available against which four teachers working in the unaided posts i.e. Mahaboob Sharief, S.Mohammed Ali, S.Sardar Basha and S.K.Abdul Latheef (writ petitioner) were rightly accommodated by the 4th respondent-Management. Hence, it is not open to the 3rd respondent now to contend that there is no need to fill up one more aided SGT post. So far as the ban order dated 20.10.2004 issued by the Government is concerned, it is clear from the show cause notice dated 06.02.2006 that the petitioner and the two other persons placed above him were absorbed against the three SGT vacancies caused due to the promotions/retirements on 12.10.2004 and proposals for approval of the 3rd respondent were submitted on 16.10.2004 itself. Since the absorption was already made by the date of the ban order dated 20.10.2004, the 3rd respondent is not justified in holding that the absorption of the petitioner was contrary to the ban order. As noticed above, the absorption was already made on 12.10.2004 and it was only approved by the 3rd respondent on 31.12.2004. For the aforesaid reasons, the impugned order being illegal cannot be sustained. Accordingly, the same is hereby set aside and the writ petition is allowed as prayed for. No costs. ______________ G. ROHINI, J Date: 01.04.2010 Note: Issue C.C. in one week. B/o KLP