THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.4087 OF 2008 DATED DECEMBER, 2010 BETWEEN B.Satyanarayana Murthy … Petitioner And The District Educational Officer, Kakinada, East Godavari District. And Others … Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.4087 OF 2008 ORDER: The petitioner, a Secondary Grade Teacher, is aggrieved by the refusal of the District Educational Officer, Kakinada, to condone the break period in the petitioner’s service from 12.10.1996 to 13.08.2000 under proceeding dated 26.06.2007. The petitioner was appointed as a Secondary Grade Teacher in Kammara Aided Elementary School, Chinnampalem, Gangavaram Mandal, East Godavari District, on 20.09.1990. His selection and appointment were as per the prescribed procedure. Being the senior most Teacher, he was made the Head Master of the School. While so, he availed leave on loss of pay from 12.10.1996 to 23.03.1997 on medical grounds. When he reported for duty on 22.03.1997, the Correspondent of the School did not permit him to join duty. When the matter was brought to the notice of the District Educational Officer, East Godavari, Kakinada, he, in turn, directed the Correspondent of the School by letter dated 11.08.1997 to issue posting orders to the petitioner as the Head Master of the School. The Mandal Educational Officer, Gangavaram, having approached the Correspondent of the School on several occasions, by letter dated 12.09.2007 informed the District Educational Officer that the Correspondent of the School had refused to permit the petitioner to join as Head Master. He further stated that she had no objection to permit the petitioner to join as an Assistant with certain conditions. He therefore requested the authorities to take necessary action in the matter. The District Educational Officer, East Godavari, Kakinada, under proceedings dated 15.12.1997 again directed the Mandal Educational Officer, Gangavaram, to instruct the Correspondent to issue posting orders to the petitioner failing which action would be taken as per Rules. The Mandal Educational Officer was requested to submit his compliance report immediately. However, it appears that the Correspondent of the School was adamant about not accommodating the petitioner and instead proposed surrender of the post held by the petitioner along with him. Thereupon, the District Educational Officer sought sanction of the Zilla Parishad, East Godavari District, Kakinada, to take over the said post along with the incumbent for utilization in any Primary/Upper Primary Schools under its control. After exchange of correspondence in this regard the petitioner along with the post were transferred and allotted to the Mandal Parishad Elementary School, Venkatanagaram, Rajahmundry Rural, under proceedings dated 11.08.2000 of the District Educational Officer, East Godavari, Kakinada. The Mandal Educational Officer, Rajahmundry Rural Mandal, issued proceedings dated 13.08.2000 in this regard directing the Mandal Parishad Elementary School, Venkatanagaram, Rajahmundry Rural Mandal, to admit the petitioner in service and submit joining report. Accordingly, the petitioner joined in service on 14.08.2000 as a Secondary Grade Teacher in the new School. His grievance presently is as to the denial of continuity of service from 1996 to 2000. His representation in this regard made in November, 2001 evoked response from the District Educational Officer, East Godavari, Kakinada, under proceedings dated 03.02.2002, whereby the Mandal Educational Officer, Rajahmundry Rural, was requested to examine the issue and submit proposals. The Mandal Educational Officer, Rajahmundry Rural Mandal, by letter dated 20.09.2006 addressed the Mandal Educational Officer, Gangavaram Mandal, seeking certain clarifications. Thereupon, the Mandal Revenue Officer, Gangavaram Mandal, replied by letter dated 16.05.2007 that there was no fault on the part of the petitioner who was put to trouble by the management of Kammara Aided Elementary School, Chinnampalem. He therefore recommended condonation of the break in service of the petitioner. It appears that in the meanwhile the petitioner was making repeated representations to the District Educational Officer with regard to this grievance. The letters dated 17.04.2006 and 22.04.2007 addressed by the petitioner in this regard are placed on record. Basing upon the clarifications received from the Mandal Educational Officer, Gangavaram Mandal, it appears that the Mandal Educational Officer, Rajahmundry Rural Mandal, submitted proposals under letter dated 21.05.2007 for the condonation of the break period in the petitioner’s service. Thereupon, the District Educational Officer, East Godavari, Kakinada, issued the impugned proceedings dated 26.06.2007 disallowing the petitioner’s request for condonation of the break in his service. Sri S.Siva Prasad, learned counsel for the petitioner, stated that the sequence of events in the case clearly demonstrated that there was no fault on the part of his client who was subjected to harassment by the Correspondent of Kammara Aided Elementary School, Chinnampalem, Gangavaram Mandal, when he reported for duty after expiry of the leave, which eventually led to his being transferred along with his post to the Mandal Parishad Elementary School at Venkatanagaram, Rajahmundry Rural Mandal. The learned counsel therefore contended that his client ought not to be punished in this regard by sufferance of a break in his service. He further pointed out that the District Educational Officer under the impugned proceeding dated 26.06.2007, relied upon a wholly extraneous ground to the effect that there was no Head Master post in Elementary School pattern for rejecting the petitioner’s request for condonation of the break period. The learned Assistant Government Pleader for School Education appearing for the respondent authorities submitted that the issue was of the petitioner’s own making as the Correspondent of Kammara Aided Elementary School, Chinnampalem, was agreeable to admit the petitioner as an Assistant Teacher instead of as the Head Master but he expressed his unwillingness therefor. He relied upon the counter filed by the District Educational Officer, East Godavari, Kakinada, reflecting averments to the same effect. The counter goes on to state that the petitioner did not work anywhere during the gap period from 12.10.1996 to 13.08.2000 and that the Department was in no way concerned about the same. The dispute, according to the respondents, was only between the Correspondent of Kammara Aided Elementary School, Chinnampalem, and the petitioner. The correspondence placed on record indicates that the management of Kammara Aided Elementary School, Chinnampalem, was obdurately insistent about not permitting the petitioner to join service after expiry of his leave as the Head Master of the School. Its offer to allow him to join as an Assistant Teacher with conditions which was declined by the petitioner is however sought to be made a ground by the authorities to justify the impugned order. This Court is however not inclined to accept this argument. In effect, the offer made by the Correspondent of the School was that the petitioner should forego his seniority. Admittedly, the petitioner being the senior most was discharging the functions of Head Master. Reduction in rank, being a major punishment, had to be imposed in accordance with Section 79 of the Andhra Pradesh Education Act, 1982, i.e., after due enquiry and with the permission of the competent authority. Such punishment could not therefore be indirectly visited upon the petitioner by the School by way of its insidious offer. The respondents cannot therefore rely upon the demur of the petitioner to accept such offer as a ground to refuse him condonation of the break in his service. The correspondence further demonstrates that in spite of the specific instructions of the District Educational Officer, East Godavari, Kakinada, under letter dated 15.12.2007, wherein action was threatened against the School if the petitioner was not issued posting orders, no steps were taken. When the post in question was an aided post, the School was bound to comply with the directions of the competent authority. However, in the present case, strangely, the District Educational Officer, East Godavari, Kakinada, failed to take any action in spite of the obstinate refusal by the School to abide by his directions. Be that as it may, acting upon the School’s request to transfer the post along with the incumbent, which is in itself highly unusual, the petitioner and his post stood transferred and allotted to the Mandal Parishad Elementary School, Venkatanagaram, Rajahmundry Rural Mandal. In this process, the petitioner was kept out of service for nearly four years. In spite of favourable proposals being submitted by the Mandal Educational Officer, Rajahmundry Rural Mandal, basing upon the recommendations received from the Mandal Educational Officer, Gangavaram Mandal, the District Educational Officer, East Godavari, Kakinada, chose to refuse to condone the break in service. However, the reasons set forth in the refusal order defy comprehension. It is relevant to note that the petitioner all through sought condonation of the break period in his service and to treat him as ‘on duty’ with consequential pay and allowances. That being so, the statement by the District Educational Officer to the effect that there was no Head Master post in the Elementary School pattern and therefore the request of the petitioner was not correct, is baffling. Having noted that the management of Kammara Aided Elementary School, Chinnampalem, was responsible for the entire issue, the subsequent finding based on the premise that there was no Head Master post is a non sequitur. The facts on hand clearly establish that the petitioner was not at fault for the break in service which resulted from his not being admitted to the post after expiry of his leave. Relevant to note, the authorities did not even choose to pass orders under Section 46(2)(vii) of the Andhra Pradesh Education Act, 1982 against Kammara Aided Elementary School, Chinnampalem, withdrawing or withholding the grant-in-aid owing to its failure to restore the petitioner in spite of directions by the competent authority. Having failed to do so and having failed to initiate action against the management of the School all through, the respondents cannot now seek to punish the petitioner by denying him continuity of service. The view taken by this Court finds support in the unreported Judgment of this Court in K.APPA RAO v. THE DISTRICT EDUCATIONAL OFFICER, EAST GODAVARI DISTRICT, KAKINADA[1]. There shall accordingly be a direction to the respondents to condone the break period with effect from 12.10.1996 to 13.08.2000 in the service of the petitioner for all purposes except seniority. It is relevant to note that under the proceedings dated 13.08.2000 the Mandal Educational Officer, Rajahmundry Rural Mandal, while directing admission of the petitioner in service in the Mandal Parishad Elementary School, Venkatanagaram, Rajahmundry Rural Mandal, specifically stated that he would take the last place in the seniority list. The petitioner did not choose to question the same. Therefore, he cannot claim seniority in the service of the Mandal Parishad Elementary School, Venkatanagaram, on the basis of his past service. His past service however has to be taken into account for all other purposes including pay, allowances, pensionary benefits, etc. The Writ Petition is allowed to the extent indicated above but in the circumstances, without any other as to costs. ____________________ SANJAY KUMAR, J. _______ DECEMBER, 2010. VGSR [1] W.A.No.1413 of 2000 dated 10.08.2005