* THE HON'BLE MR JUSTICE RAMESH RANGANATHAN + WRIT PETITION NO. 2661 OF 1995 % 12.12. 2006 # G. Ramarao. ….. Petitioner Vs. $ Government of A.P. rep., by its Secretary, Education Department, Secretariat, Hyderabad and two others. …..Respondents ! Counsel for the petitioner: Sri P.V. Sanjay Kumar ^ Standing Counsel for respondents: G.P. for Higher Education < Gist: >Head Note ? [1] 1988(2) ALT 237 2 1988(2) ALT 577 3 1990(2) APLJ 12 4 (2005) 7 SCC 190 5 AIR 2001 Rajasthan 51 6 AIR 1997 SC 1125 7 1990(2) SCC 715 8 2005(1) SCC 444 9 AIR 1990 SC 334 10 AIR 1971 SC 2355 11 AIR 1965 SC 1153 12 AIR 1971 SC 1676 13 AIR 2005 SC 2227 14 2004(12) SCC 673 THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.2661 of 1995 JUDGMENT: The present writ petition is filed for a direction to the respondents to regularize the petitioner’s services, as a lecturer in chemistry, with effect from 4.12.1983, with all consequential benefits and to hold the action of the respondents in treating him as a regular lecturer in chemistry only with effect from 27.1.1993, instead of from 4.12.1983, as illegal, arbitrary and violative of Articles 14 and 16 of the Constitution of India. The petitioner obtained his post graduate degree in chemistry, from Kakatiya University, in first division in the year 1981. He was appointed, vide proceedings dated 1.9.1982, as a part-time lecturer in chemistry in the 3rd respondent – college. His appointment, as a part-time lecturer in chemistry, was to cease from the end of the academic year 1982-83 or from the date on which regular appointments were made, whichever was earlier. According to the petitioner, his appointment as a part-time lecturer in chemistry was against a clear vacancy and, having regard to the terms and conditions of his appointment, he was entitled to be appointed on a regular basis. Petitioner would submit that, in order to fill up certain vacancies, including for the post of lecturer in chemistry, the 3rd respondent had issued an advertisement in the Indian Express on 18.8.1993, inviting applications from qualified candidates. It was stated therein that the post was un-aided and that appointments would be made on a temporary basis on a consolidated pay of Rs.600/- per month. The selection committee, which met on 04.12.1983, selected the petitioner for appointment to the post of lecturer in chemistry. Petitioner would submit that, from amongst the six applications received, a panel of three candidates was finalized, by the selection committee, wherein he was placed at Sl.No.1. The Selection Committee, (consisting of the president of the college, the secretary and correspondent of the college, a representative of the Osmania University, the District Educational Officer and the principal of the college), in its proceedings dated 4.12.1983, had recorded that the selected candidates may be appointed in the respective posts/vacancies provided they were eligible according to their turn in their respective rosters of communal rotation as per the government orders in force. Petitioner would submit that, on the basis of the decision of the selection committee, in its meeting held on 4.12.1983, he was appointed as a lecturer in chemistry on a consolidated pay of Rs.600/- per month though he was entitled to be appointed, as a lecturer in chemistry, on a regular basis in view of the orders of the correspondent of the college dated 1.9.1982. According to the petitioner he was being paid a consolidated pay of Rs.600/- per month both prior to the decision of the selection committee on 4.12.1983 and thereafter, though no order appointing him as a lecturer in chemistry was issued pursuant to the aforesaid decision. The petitioner filed W.P.14771 of 1985 seeking a direction to the respondents to consider his claim for appointment to the post of lecturer in Chemistry giving effect to the recommendations of the selection committee dated 4.12.1983 with all consequential benefits. The said Writ Petition was disposed of by order dated 26.9.1989, wherein this Court observed thus:- “……The questions raised herein, as reported by the counsel appearing for the petitioner as also the Asst. Govt. Pleader, Education, are squarely covered by the decision rendered by Choudary,J in W.P.No.2699/86 and batch on 1.4.1988. This writ petition is therefore disposed of in terms of the said order passed by Choudary, J. The petitioner shall be accordingly entitled to the benefits of G.O.Ms.No.905 dated 21st September, 1976, if he was selected pursuant to the procedure prescribed in the said G.O…….” (emphasis supplied) In D.G.Krishnamacharyulu v. Government of A.P.[1], (W.P.2699 of 1986 and batch dated 1.4.1988), P.A.Choudary, J observed: “…….. With its step-motherly treatment meted out to primary and high school education, the State is unconstitutionally pampering the college and University education and producing too many degree-holders for the good of the society. Many of the degree-holders, who are otherwise not fit to be employed, are chasing the few but well paid teaching posts in colleges and universities. This batch of writ petitions is filed by some of those lecturers. They were all appointed in various private colleges during the years 1980-85. During the period and even earlier appointments to teaching posts in the private colleges receiving State aid were made by following the method of selection made by a selection committee consisting of the Principal of the private college, a representative of the management, two representatives of the university and a Government nominee. Some of the lecturers have been so selected following the method of selection by the selection committee. Others were not so selected. They were selected only by the private management without the intervention of the selection committee. But both classes of teachers were appointed as per G.O.Ms.No.1023 dated 4th November, 1976 and G.O.Ms.No.905 dated 21st September, 1977 on adhoc basis. Their appointments were described as part time and, temporary. Some of them were not appointed to timescale but were appointed on a consolidated pay per month. Some were appointed on piece- rate basis of Rs.10/- per day. Now the complaint of these petitioners is against the application of Act 13 of 1985 called A.P. College Service Commission Act, 1985 to their posts. According to the contention of the Government the posts to which these petitioners have been appointed should be regarded as not having been filled-up permanently and should, therefore, be treated as vacant on the day of the commencement of the Act which is 1st October, 1985 and should, therefore, be filled up by the College Service Commission. The above Act is an enactment passed in pursuance of a report submitted by a three-man committee headed by a former Chief Justice of this Court Sri P. Jaganmohan Reddy. That committee recommended the setting up of central recruitment agency for recruiting to all the teaching posts in the private aided colleges. The Government has accepted that report obviously for the reason that the quality of the degree-holders turned-out by the Universities is not reassuring. But the Government took several years before enacting the above Act No.13 of 1985. Meanwhile, lecturers like the petitioners have been appointed to the teaching posts either following the procedure of the selection or even without following that procedure. Section 9 of the Act says that all existing vacancies should be filled up by the College Public Service Commission. The question is whether the posts filed up by the petitioners should be treated as existing vacancies or not. I am of opinion that those teachers who have been selected following the procedure of selection should be treated as regularly filling the posts notwithstanding the fact that their appointments were described as temporary or adhoc on the assumption that the Jaganmohan Reddy Committee report should be made into law immediately. That assumption has been belied by the failure of the State to enact the College Service Commission Act till the year 1985. I, therefore, think it unjust to treat the posts as being vacant notwithstanding the fact that they have been substantial compliance with the existing law in the matter of their appointments. On the other hand, I think that those who have been appointed by the private managements without the intervention of the process of selection be regarded as not filling the posts. For this distinction, I rely upon the difference between the two types of selection made. In the case of first group the vital provisions of law for selection have been adhered to whereas in the case of second group of persons that vital provision o flaw has been totally disregarded. The argument of the petitioners that the process of selection has commenced prior to October, 1, 1985 and that the same process should be continued even for the regularization ignores not only the scheme of G.O.Ms.Nos.905 and 1023 but also Act No.13 of 1985 under the existing law. The services of those appointed contrary to the above G.Os, cannot be regularized. Today except through a College Service Commission no existing vacancy could be filled. That position is made abundantly clear by Sections 8 and 9 of the College Service Commission Act. On the basis that appointments made without intervention of selection committees are ad hoc, I reject the petitioner’s argument. I cannot derive any benefit from any of the judgments in Daily Rated Casual Labour Employed Under P & T Department vs. Union of India (AIR 1987 SC 2342), Bhagawan Dass v. State of Haryana (AIR 1987 SC 2049) which have been cited. In this batch of writ petitions the question which of the petitioners fall under what category has not been investigated, because the learned counsel for the petitioners had never advanced any arguments, relevant to the individual cases. He only attempted to advance that argument after I dictated this order. Even otherwise, such an exercise would involve spending of a lot of time of this Court. I would, therefore, direct the petitioners to approach the Director of Higher Education who will examine the claims if any made by each one of these petitioners in the light of this judgment. Where he finds that a particular teacher has been appointed after going through the process of selection by the duly constituted committee as per the above mentioned two G.Os. he shall notify that fact to the concerned petitioners and the management so that those posts will be taken out of the purview of the Act No.13 of 1985. The Director of Higher Education shall dispose of the representations if any, filed by the petitioners within two months from the date of their representation. The petitioners will file their representations within two weeks from the date of the receipt of this order……” (emphasis supplied). According to the petitioner, since his appointment was made in accordance with G.O.Ms.No.905 dated 21.9.1976, he was entitled to be appointed as a regular lecturer in chemistry from 4.12.1983, i.e., the date on which the Selection Committee considered and included his name at Sl.No.1 in the panel of selected candidates. He would contend that G.O.Ms. No. 599 dated 30.12.1983 could not be made applicable retrospectively in respect of the selections held prior to its coming into force. The government, vide G.O.Ms.No.554 dated 5.11.1986, directed the Director of Higher Education to take over the 3rd respondent college with all its assets. Under the said G.O. the expenditure, of the staff in the unaided sections, had to be met from the plan provision of Higher Education Department. Petitioner would contend that, pursuant to the orders in G.O.Ms. No. 554 dated 5.11.1986, all unaided posts are required to be treated as aided. Instead of treating the petitioner as a regularly selected lecturer the principal of the 3rd respondent college, vide proceedings dated 13.11.1989, terminated his services with effect from 27.9.1989. The order dated 13.11.1989 read as if the petitioner was being terminated pursuant to the orders of this Court in W.P.14471 of 1995, though the order of this Court provided to the contrary. Aggrieved thereby, the petitioner filed W.P.16417 of 1989 and interim orders were passed in W.P.M.P.21683/89 dated 24.11.1989. On the ground that the interim order of this Court was disobeyed by the respondents, the petitioner filed C.C.211 of 1990. W.P.No.16417 of 1989 and C.C.211 of 1990 filed by the petitioner were disposed of, along with W.P.Nos.15708 and 16409 of 1989and C.C.No.74 and 210 of 1990, by common order dated 4.4.1991, wherein this Court observed:- “……..In the counter affidavit filed on behalf of the respondent it is alleged that since no appointment order was issued by the erstwhile Management pursuant to the selection of the petitioner by the Selection Committee on 4.12.1983, he was continued as a part time lecturer. Further more, the College Service Commission is the only competent authority for selection of candidates for teaching posts and the Management has no power to make appointments. It is evident that this approach of the respondents is manifestly wrong in the light of the decided cases on the subject by the High Court. If the petitioner ha been selected by a duly constituted Selection Committee and his name figures at Serial No.1 in the panel suggested by the Selection Committee, then it is obvious that he must be appointed as a full time Lecturer. The only ground on the basis of which the application of the petitioner for giving effect to the judgment of the Division Bench dated 12.9.1989 has been rejected, seems to be that there is no sanctioned post of Lecturer in Economics since the Government permitted the additional section in B.A. during 1980-81 without aid and with the condition that the management should not appoint full time teaching staff on this account and they should adjust with the existing staff. However, it is difficult to understand the logic behind this assertion as the petitioner was selected in pursuance of the resolution of the Selection Committee dated 4.12.1983 and was appointed as a Lecturer in Economics vide proceedings of the Correspondent No.KRR/409/B/83 dated 5.1.1984. More over, the above plea of the Government is rendered innocuous in view of the Government Order contained in G.O.Ms.No.554 dated 5.11.1986 by virtue of which the Government directed the Director of Higher Education to physically take over the K.R.R. Arts and Science College, Kodad with its assets and further directed that the expenditure on the staff in unaided sections has to be met from the plan- provisions of Higher Education. Thus, it is obvious that in view of the orders of the Government in G.O.Ms.No.554 dated 5.11.1986, the petitioner’s post cannot be said to be an unaided post. In D.G. Krishnamacharyulu v. Government of Andhra Pradesh (1988 (2) ALT 237), the view taken by this Court is that teachers who have been selected following the procedure of selection should be treated as regularly filling the posts notwithstanding the fact that their appointments were described as temporary or adhoc. On the other hand, those who have been appointed by the private managements without the intervention of the process of selection be regarded as not filling the posts. Similar view has been taken by me in Lusy Sarojini v. Special Officer (1988(2) ALT 577). In the Besant Thesophical College v. S.Jahanara Begum (1990(2) APLJ 123) also a Division Bench of this Court has taken a similar view that when a candidate was selected by the duly constituted Selection Committee and was placed at Serial No.1 in the selection list, he is entitled to be appointed on a regular basis. The consistent view taken by this court has been followed in W.P.No.6410/89 dated 15.2.1991. In view of the above discussion, writ petition No.15708/89 is allowed and the order of the Director of Higher Education, 1st respondent, bearing No.4935/DC 5-3/87 dated 17.10.1989 is set aside. It is further directed that the petitioner shall be retained and continued as a Lecturer in Economics by granting him the pay scale attached to it pursuant to the decision of the Selection Committee dated 4.12.1983, and the consequential appointment order contained in Rc.No.KRR/409/B/83dated 5.1.1984……” W.P.No.16417/89: The petitioner in this writ petition assails the proceedings of the 2nd respondent bearing Rc.No.KRR/795/B/89 dated 13.11.1989 terminating his services as Part time lecturer in Chemistry with effect from 27.9.1989. The brief facts of this case are as follows:- The petitioner obtained a degree in M.Sc. (Chemistry) and was placed in the First Division in the year 1981. He was appointed as a part time Lecturer in Chemistry in the 2nd respondent – college vide proceedings of the Correspondent of the K.R.R.Govt. Arts & Science College, Kodad Rc.No.KRR/372/B882 dated 1.9.1988. He is fully qualified to be appointed as a full time lecturer. The authorities issued an advertisement in Indian Express dated 18.8.1983 calling for applications for appointment to the post of Lecturer in Chemistry, on a regular basis. The petitioner also submitted his application. A duly constituted Selection Committee met on 4.12.1983 and selected the petitioner for the post of Lecturer in Chemistry. The contention of the petitioner is that G.O.Ms.No.599 dated 13.12.1983 is not applicable to him as the post happens to be an unaided post. On the basis of the selection made by the selection Committee dated 4.12.1983 the petitioner was appointed as a Lecturer in Chemistry on a consolidated pay of Rs.600/- per month. In fact, the petitioner was being paid the consolidated pay of Rs.600/- per month even prior to the decision of the Selection Committee dated 4.12.1983 and even after his selection by the Selection Committee he is being continued on a consolidated pay of Rs.600/- per month. The facts governing this case are exactly similar to the one narrated in the earlier Writ Petition No.15708/89. The petitioner claims that he is entitled to be appointed as a Lecturer in Chemistry on a regular basis. The matter arising for consideration in this writ petition is fully covered by a series of decisions, referred to in the first writ petition, viz., W.P.No.15708/89. In Lusy Sarojini v. Special Officer (2) I have already taken the view that in a situation like this no vacancy exists in the eye of law which could be notified to the College Service Commission. Viewed from any angle the case of the petitioner deserves to be considered favourably. The petitioner is entitled to be appointed as a Lecturer in Chemistry on a regular basis. The impugned order of the 2nd respondent bearing No.KRR/795/B/89 dated 13.11.1989 is, therefore, set aside and the writ petition, viz., W.P.16417/89 is allowed……” After pronouncing the judgment the learned counsel for the petitioners Mr.G.Mohan Rao has submitted that a time limit may be fixed for implementation of the orders of this court in all the three writ petitions. This seems to be a reasonable request and therefore, it is directed that the judgment in W.P.Nos.15708, 16409 and 16417 of 1989 shall be implemented within two months from the date of receipt of this order…….” It is necessary to note that in Mrs.Lusy Sarojini v. The Special Officer & Principal, College of Arts & Science, Kamareddy, Nizamabad District[2], (the judgment relied upon by the Learned Single Judge, while disposing of W.P.16417 of 1989 and C.C.211 of 1990, by order dated 4.4.1991), it was held:- “……The point, therefore, which clearly emerges from the above discussion is that there were no vacancies available as required under Section 9 of the Act existing as on 1-10-85, which could be communicated to the College Service Commission to enable it to make recommendations under Section 13 of the Act. By 1-10-85 each and every one of the petitioners had already put in a service of about three years. In the information communicated to the college service commission in Annexure-I this fact has been brought to the notice of the college service commission authorities under the heading “date of appointment of all the petitioners as lecturers in the college”. These appointments have been made in accordance with the provisions of G.O.Ms.No.905 dated 21.9.1976 which allowed ad-hoc appointments to be made from time to time in the interests of continuation of education in the colleges. More over under the provisions of G.O.Ms.No.303, dated 16.7.85 it is clearly stated under clause (iv) that on completion of the period of three years the Lecturers are entitled for regularization of appointments provided their services have been satisfactory. The petitioners had already been working at that time for a period of about three years and were entitled to regularization of their services in accordance with G.O.Ms.No.303, dated 16.7.83, referred to above. They have been selected on 14.10.86 much after the coming into force of the College Service Commission Act by a committee consisting of eminent educationalists. These petitioners are qualified experienced lecturers and it is common knowledge that such trained expert lecturers are not easily available in the open market. The learned counsel for the petitioners appearing in this case has relied upon Delhi C & G Mills Ltd. v. Union of India (AIR 1987 SC 2414) of India dealing with the question of doctrine of promissory estoppel. The principle laid down in the said judgment is that the alteration of position by the party on the strength of a promise made by others is enough to make the doctrine of promissory estoppel applicable to the case. It is not necessary to prove further any damage, detriment or prejudice to the party asserting the estoppel. The court, in such circumstances, would compel the opposite party to adhere to the representation acted upon or abstained from acting. However, in view of the fact that the vacancies did not exist at the relevant time, as discussed above, it may not be necessary to apply the ratio of the above case in this matter. The jurisdiction of the College Service Commission depends upon the intimation of vacancies under Section 9 of the Act and if there are no vacancies it cannot make any recommendation under Section 13 of the Act. A similar view was taken in W.P.2699 of 1987 and batch and it was held that in case of teachers who have been selected following the procedure of selection they should be treated as regularly appointed described as temporary or ad hoc on the assumption that the College Service Commission is going to be set up. Viewed from any angle, the writ petition deserves to be allowed. A direction is issued to the respondents to drop the proceedings initiated against the petitioners in R.C.92/E/87 dated 2-2-87 and to treat the petitioners as regularly appointed lecturers with effect from their respective date of joining the college………” (emphasis supplied) Aggrieved by the order, passed in W.P.Nos.16417 and 16409 of 1989 dated 4.4.1991, the respondents herein filed W.A.No.1114 and 1116 of 1991 which was disposed of by order dated 28.10.1991. The Division Bench observed: “…….It is submitted by the learned Government Pleader appearing for the appellants that the college was taken over by the State Government on 5.11.1986 and the orders of termination were passed by the Government College on 13.11.1989, this court does not have any jurisdiction to entertain the Writ Petitions and the proper course open to the respondent-lecturer is to approach the Andhra Pradesh State Administrative Tribunal. From the judgment under appeal it does not appear that this plea was raised before the learned single Judge. However, the matter relates to the question of jurisdiction, we have heard the learned Government Pleader for considerable time. As we have already referred to, these of both the lecturers is covered by the two judgments referred to above rendered in the year 1989. Both the appellants herein are parties to these judgments. In these judgments, a specific direction was given to the appellants herein to consider the cases of both the respondent-lecturers in accordance with G.O.Ms.No.905 dated 21 September, 1976, but the impugned orders of termination dated 13.11.1989 show that their case was not at all considered in accordance with the direction of this Court and that their services were terminated solely on the ground that they were being continued in service pursuant to the interim direction granted by this Court. When the appellants herein did not obey the orders of this court to