THE HON’BLE SRI JUSTICE C.V. RAMULU W.P. No. 5310 of 2003 O R D E R: This writ petition is filed seeking a Certiorari calling for the records relating to and in connection with the order passed by respondent No.1 in G.O.Rt.No.771, School Education (PS-1) Department dated 13.12.2002 and quash the same as arbitrary and illegal; consequently, to declare the order in Rc.No.3012/B1/89 dated 25.5.1998 of respondent No.2 as arbitrary, illegal and contrary to the provisions of A.P. Education Act, 1982 and the Rules made thereunder. Petitioner is the management of GCSS Junior College, Sangadigunta, represented by its Secretary and Correspondent. Respondent No.4 was a School Assistant working in the school- section of the petitioner-college. It appears, respondent No.4 was appointed as a School Assistant, against an unaided vacancy, in the petitioner- college with effect from 21.2.1984. He worked in unaided Section. However, his services were terminated without prior sanction of the competent authority. Therefore, he filed an appeal before the Regional Joint Director. The same was allowed and further confirmed in appeal by the Government. Aggrieved thereby, petitioner-management filed W.P. No.25156 of 1998 before this Court. The said writ petition was dismissed on 17.11.1998 while directing the petitioner to file appeal before the Government. Petitioner filed W.A. No. 2233 of 1998 against the order dated 17.11.1998 in W.P. No. 25156 of 1998 and the said writ appeal was dismissed by this Court on 27.8.1999. Aggrieved thereby, petitioner filed S.L.P. (Civil) No. 6366 of 1999 before the Supreme Court. On 27.8.1999, Supreme Court dismissed the S.L.P. with an observation to approach the High Court seeking to grant time to file appeal before the Government. On 30.11.1999, this Court vide orders in WAMP No. 2871 of 1999 granted time to file appeal before the Government. Petitioner filed appeal before the Government on 13.12.1999 along with a petition seeking interim suspension. However, till 18.12.2000, the Government did not pass interim orders in the appeal. Therefore, petitioner filed W.P. No. 25661 of 2000 seeking a direction to the Government to pass orders in the suspension petition. While admitting the said writ petition on 27.12.2000, this Court, vide orders in WPMP No. 32724 of 2000, directed the Government to dispose of the main appeal or interim suspension petition. The grievance of the petitioner is that on 2.4.2002 and 18.6.2002, the Government of Andhra Pradesh heard the appeal and on 13.12.2002 passed orders vide G.O.Rt.No. 771 without considering the arguments of the petitioner, the orders passed by this Court and the Supreme Court and appointed 4th respondent in the aided post granted vide G.O.Ms.No.326 Education dated 17.10.1989 and also directed that his services be transferred to any of the needy schools under the control of Zilla Parishad, Guntur while directing the petitioner herein to pay arrears of salary to 4th respondent from the date of removal till the date on which he joined in Zilla Parishad, Guntur. Aggrieved thereby, petitioner filed the present writ petition. Respondents 1 to 3 filed counter affidavit denying the allegations leveled in the writ petition and it is further stated that as per Rule 146 of the A.P. Education Rules “no qualified teacher shall be appointed on temporary capacity in a permanent post. Any post which is in existence for two years or more shall be deemed to be permanent. Respondent No.4 was appointed by the petitioner on 21.2.1984 and he worked continuously in the same post for more than two years, as such, it can be said that 4th respondent was continuing as regular employee in a permanent post as on the date of termination. As per Sub-Rule 16 of Rule 20 of G.O.Ms.No.524 Education dated 20.12.1988, prior permission of the competent authority for closure of any class/section with one year notice is necessary. Petitioner has not obtained prior permission of the competent authority before closure of section and, therefore, subsequent termination of the services of respondent No.4 is not tenable. The interim orders issued by respondent No.2 and the final orders passed by him are in conformity with the directions issued by this Court in W.P. No. 17636 of 1997. It is not correct to say that no notice need be given for removal/termination from service under the A.P. Education Act 1 of 1982. As per Section 17 of Act 27 of 1987, prior approval of the competent authority is required before removal/termination of any employee working in Private Recognized Educational Institutions. It is not correct to say that the management shall not continue temporary employee in the school for more than 60 days. As a matter of fact, under Rule 140 of A.P. Educational Rules no temporary appointment shall be made against a clear vacancy. That is to say, a qualified person appointed in any clear vacancy is considered to have been appointed on regular basis. The management has no right, whatsoever, to terminate the services of employees in a recognized school without following the procedure laid down in Act 1/1982. The removal of respondent No.4 from service was not done in accordance with the Rules. Therefore, there are no merits in the writ petition and the same is liable to be dismissed. While admitting the writ petition on 28.3.2003, this Court, granted interim suspension of G.O.Rt.No. 771. 4th respondent filed WVMP No. 2739 of 2003 seeking to vacate the interim suspension and this Court vide orders 22.10.2003, modified the interim order dated 28.3.2003, directing the State Government to take steps to appoint 4th respondent in the aided post sanctioned in G.O.Ms.No. 326 dated 17.10.1989 and thereafter transfer his services to any of the needy schools under the control of the Zilla Parishad, Guntur. It was also held that the writ petitioner – management shall, however, not be liable to pay the arrears of salary to the vacate petitioner – 4th respondent from the date of his removal till the date on which he joins in the services of the Zilla Parishad, Guntur, pursuant to the orders of the State Government in G.O.Rt.No.771 School Education (PS-1) Department dated 13.12.2002, pending disposal of the writ petition and that the liability of the writ petitioner, if any, to pay such arrears to 4th respondent shall fall to be determined in the writ petition. Heard both sides. There is no necessity of going into all the details. It is seen from the material available on record that respondent No.4 was reinstated, absorbed into aided vacancy and transferred to a Zilla Parishad School, where he joined and working as such. Now, the question is as to whether respondent No.4 is entitled for payment of salaries by the petitioner-management for the period during which he was kept out of employment due to illegal termination? For the purpose of better appreciation of the case, the relevant portion of the order in W.P. No. 10044 of 1992 dated 8.3.2006 is reproduced, as under: “Then the question is who has to pay the amount – whether the management or the Government. Admittedly, the post is unaided on the date of termination of the petitioner’s services. Whether the post has been subsequently admitted to grant-in-aid or not is not available from the pleadings. As such, the petitioner cannot ask the Government to pay the arrears unless he establishes that the post is admitted to grant-in-aid. If the petitioner is not already admitted to grant-in-aid, it is open to the management to approach the Government, and seek admission of the post to grant-in-aid from whatever date it is entitled to, under law. The petitioner shall file the application before the Regional Joint Director within THREE WEEKS FROM TODAY. Within one month from the date of the filing, the Regional Joint Director will dispose of the matter and the management shall pay the arrears as may be determined by the Regional Joint Director within three months thereof. The writ petition is accordingly allowed with costs. Advocate’s fee Rs. Five hundred”. In view of the orders passed by this Court in W.P. No. 10044 of 1992 dated 8.3.2006, if the post is admitted to grant-in-aid and respondent No.4 worked in the petitioner-Institution against any aided vacancy, the Government is supposed to pay salaries. But, it is an admitted fact that 4th respondent never worked against any aided vacancy in the petitioner-management school. As soon as the dispute was resolved by this Court in various proceedings, petitioner was absorbed in the aided vacancy and transferred to a Zilla Parishad High School. Therefore, as per the orders in W.P. No. 10044 of 1992, petitioner is not entitled to claim salaries for the period during which he worked in the petitioner-management school, against an aided vacancy. Respondent No.4 is claiming salary from the date of removal till the date of joining in the Zilla Parishad High School, Guntur, treating it as an aided service. Even if it is deemed that the petitioner is continuously in service from the date of removal till the date of joining in Zilla Parishad, he is entitled only for the salaries against unaided vacancy, as per his eligibility, from the petitioner- management. In view of the above, petitioner-management is directed to pay arrears of salary to respondent No.4 for the period during which he was out of employment in view of illegal termination i.e. from the date of removal till the date of reinstatement, treating the service against unaided post in the petitioner-school, as per his eligibility. However, this will not preclude 4th respondent from claiming salary if any due to him against any aided vacancy, after he was absorbed in such aided vacancy by the Government. The writ petition is disposed of accordingly. No order as to costs. JUSTICE C.V. RAMULU. Date: 7-9-2010. MVB.