IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE FOURTH DAY OF AUGUST TWO THOUSAND AND NINE PRESENT THE HON'BLE THE CHIEF JUSTICE AND THE HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY Writ Appeal No. 1024 of 2009 (Writ Appeal under Clause 15 of the Letters Patent against the Order dated 28/12/2007 in Writ Petition No. 6348 of 2005 on the file of the High Court.) Between: 1) The Principal Secretary to Government , Education Department, Secretariat Buildings, Hyderabad 2) The Commissioner & Director of School Education AP., Hyderabad 3) The District Educational Officer, Srikakulam ... APPELLANTS AND 1) Sri T.Appala Naidu S/o. Chinnappanna Aided Upper School, Kaminaidupeta, Srikakulam District 2) The Manager, & Correspondent Aided Upper Primary School, Kaminaidupeta, Srikakulam District ... RESPONDENTS Counsel for the Appellants: GP FOR SCHOOL EDUCATION Counsel for Respondent No.1: MR.D.V. NAGARJUNA BABU Counsel for Respondent No.2: NONE APPEARED The Court made the following: ORAL JUDGMENT: (per the Hon’ble Shri C.V. Nagarjuna Reddy, J) 1. This appeal is filed against order dated 08.12.2007 filed in Writ Petition No.6348 of 2005 whereby the learned Single Judge has allowed the writ petition filed by respondent No.1. 2. Heard the learned Government Pleader for the appellants and Shri D.V.Nagarjuna Babu, learned counsel for respondent No.1. 3. Respondent No.1 was appointed as Secondary Grade Teacher in respondent No.2 institution, which is an Upper Primary School at Kaminaidupeta of Srikakulam District. He was working in an unaided post. When one of the aided posts fell vacant in December, 2001, respondent No.1’s case was proposed for consideration for absorption against the aided vacancy. As no orders were passed in his favour, respondent No.1 approached this Court by way of Writ Petition No.10626 of 2003. The said writ petition was disposed of by the learned Single Judge by order dated 11.6.2003 wherein the following order was passed: “From a perusal of the letter dated 7.1.2003 addressed by the second respondent to the first respondent, it is evident that the second respondent was satisfied as to the eligibility and entitlement of the petitioner to be absorbed against the aided vacancy in the fourth respondent school. The post is remaining vacant since more than two years. There does not exist any valid basis to keep the post vacant, more so when an eligible and qualified candidate is available. Under these circumstances, the writ petition is disposed of directing the first respondent to pass appropriate orders on the letter dated 7.1.2003 addressed to him by the second respondent within two months from the date of receipt of this order.” 4. As this order was not complied with immediately, respondent No.1 evidently filed a contempt case. During the pendency of the said contempt case, appellant No.1 issued proceedings in Memo No. 653/PS- 3/2003-1, dated 16.9.2003 wherein he referred to some proceedings, including order dated 11.6.2003 passed in Writ Petition No.10626 of 2003 referred to above, and accorded permission to the District Educational Officer, Srikakulam to permit the management of the Aided Upper Primary School to absorb respondent No.1 into the vacant aided post with effect from 1.12.2001 duly following the guidelines issued in G.O.Ms.No.75, School Education (PS-2) Department, dated 23.9.2003 and also orders issued in G.O.Ms.No.100, Education (PS-1) Department, dated 16.8.2001. Appellant No.1 also directed in the said memo that Commissioner and Director of School Education/District Educational Officer, Srikakulam should implement the orders contained therein after verifying the eligibility of respondent No.1 according to the rules contained in G.O.Ms.No.1, Education (PS-2) Department, dated 1.1.1994 and examining the roll and attendance particulars of the school as per the rules in force. For a long time thereafter, no follow-up action was taken. However, by Memo No.17705/PS-2/2004-3, dated 14.2.2005, respondent No.1 passed another order, which is diametrically opposite to order dated 16.9.2003 rejecting respondent No.1’s claim for appointment in the aided post on the purported ground that there is no adequate student strength and that the management is free to take a decision to wind up the unaided post. Questioning this memo, respondent No.1 filed Writ Petition No.6348 of 2005. 5. The learned Single Judge, having considered the stand taken by the respondents (appellants herein) in the counter-affidavit wherein it was admitted that during the period from 2001-02 and 2002-03 there was sufficient strength for engaging five aided teachers, including the petitioner, held that had the respondents taken the student strength during the above mentioned academic years, the petitioner would have been qualified and eligible for being appointed in terms of the guidelines concerning teacher-pupil ratio and as the petitioner’s rights have already been determined in Writ Petition No.10626 of 2003, there was no justification to examine his case with reference to the position obtaining in the year 2005. On this reasoning, the learned Single Judge allowed the writ petition. 6. At the hearing, the learned Government Pleader for Education strenuously contended that the admitted student strength for the year 2005-06 when respondent No.1’s case was considered was only 120, which would only require three aided teachers and, therefore, respondent No.1 cannot possibly be appointed in the aided post. 7. As noted above, this Court, in the previous writ petition viz., Writ Petition No.10626 of 2003 held that the petitioner was fully eligible and entitled for being absorbed against the aided vacancy. Appellant No.1 has, indeed, accordingly considered the claim of respondent No.1 with effect from 1.12.2001, the date on which the vacancy in the aided post has arisen. Admittedly, in the year 2001, the student strength was 248, which would have accommodated respondent No.1 as the fifth teacher in the aided post. From the roll particulars filed by the appellants, it is evident that during the year 2002-03, the total student strength was 206 and according to the prescribed norms, there was need for five teachers. The appellants have not offered any justification whatsoever for not taking follow up action in pursuance of Memo dated 16.7.2003 referred to above. More than one and half years later, appellant No.1 issued proceedings dated 14.2.2005 wherein a converse stand was taken, denying respondent No.1 of the benefit of appointment in the aided post. 8. Having fully considered the facts and in the light of the order passed by this Court in Writ Petition No.10626 of 2003, which crystalised the rights of respondent No.1 for appointment in the aided vacancy, we find no merit in the submission of the learned Government Pleader that in view of the depleted student strength as in 2005, the appellants were justified in rejecting the claim of respondent No.1. The appellants cannot be allowed to take advantage of their own inaction in absorbing respondent No.1 in the aided vacancy in the year 2003 having issued the Memo dated 16.7.2003. 9. For the above mentioned reasons, we do not find any error in the order of the learned Single Judge in allowing the writ petition. The writ appeal is accordingly dismissed. ANIL R. DAVE, CJ August 04, 2009 C.V. NAGARJUNA REDDY, J svs ........REGISTRAR To 1. 2.2 CD copies Form-NIC-OGS/WA {TRK}