IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TENTH DAY OF FEBRUARY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO.15621 of 2007 Between: Arshad Ali S/o. Late Shaik Ali, 23 yeard, Occ.Attender, Girls High School, Moazzam Jahi Market, Shah Ali Banda, Hyderabad. R/o.H.No. 20-4-206/B, Himmatpura, Shah Ali Banda, Hyderabad. ...PETITIONER AND 1 The Director of School Education, A.P. Hyderabad. 2 The Regional Joint Director of School Education, Hyderabad. 3 The District Educational Officer, Hyderabad. 4 The Secretary & Correspondent, Girls High School Moazzam Jahi Market, Shah Ali Banda, Hyderabad. ...RESPONDENTS Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ order or direction more particularly one in the nature of writ of Mandamus declaring the action of the Respondents 1 to 3 herein in not approving the appointment of the petitioner as attender in a grant in aid post in 4th Respondent School as wholly arbitrary, illegal, and violative of principles of natural justice and pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case. Counsel for the Petitioner: MR.S.SHARAT KUMAR Counsel for the Respondents: GP FOR SCHOOL EDUCATION The Court made the following: THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO.15621 of 2007 ORDER: The petitioner applied to the post of Attender on compassionate grounds in Girls High School, Moazzam Jahi Market,Hyderabad-fourth respondent. The Secretary & Correspondent of the Girls High School, Moazzam Jahi Market, considered his application and appointed him as Attender on 01.08.2004 and sought approval from the District Educational Officer-third respondent. The District Educational Officer sent a communication dated 27.02.2006 in Rc.No.20150/E1/2005 to the Deputy Educational Officer, Bahadurpura, with certain remarks. The Deputy Educational Officer, Bahadurpura, resubmitted the proposal to the District Educational Officer, Hyderabad together with necessary particulars. The petitioner made a representation dated 13.04.2006 to the District Collector, Hyderabad District, reiterating his request for approving his appointment. The same was endorsed to the D.E.O. requesting him to send a factual report by 30.04.2006. Since no report was furnished by the District Educational Officer, the District Collector, Hyderabad, vide his letter No.A4/256/2006 dated 06.06.2006, requested the D.E.O., Hyderabad, to take immediate action and submit compliance report within a week positively. The District Educational Officer sent proposals with regard to approval of appointment of the petitioner as Attender on compassionate grounds to the Regional Joint Director of School Education, Hyderabad. The fourth respondent wrote another letter bearing No.1638 of 2006 dated 20.07.2006 seeking approval of the appointment of the petitioner as Attender in terms of G.O.Ms.No.568 dated 01.07.1982 and G.O.Ms.No.349 dated 01.06.1984 with effect from 01.08.2004. According to the petitioner, his appointment is prior to the imposition of ban orders, which came into effect from 20.10.2004, and therefore, the ban orders cannot be made applicable to his case. Rule nisi came to be issued on 09.08.2007 and an interim direction has been granted on the even date vide W.P.M.P.No.19763 of 2007. Respondent 1 to 3 entered appearance and filed W.V.M.P.No.460 of 2008 with a prayer to vacate the interim order granted in W.P.M.P.No.19763 of 2007. Respondents 1 to 3 filed counter affidavit in the Writ Petition stating that the proposals sent for approval of the appointment of the petitioner as Attender have been returned because of the ban imposed by the Government with regard to promotions and appointments on compassionate grounds. For better appreciation, I may refer to paras-4 and 5 of the counter affidavit, which reads as under. In view of the above mentioned facts and the ban orders issued by the Government 3rd respondent has returned the Proposals to the 4th Respondent vide Rc.No.563/E1/2006, dated 29.09.2006 referring to the proceedings of the 2nd Respondent herein dated 26.06.2006 and also to the letter of the 4th Respondent by informing that the case of the petitioner would be considered after lifting of the ban, I submit that in response to the District Collector letters dated 06.06.2006 and 03.10.2006 a report has been submitted to the Collector by the 3rd Respondent Lr.No.563/E1/2006, dt.05.07.2006 and 06.11.2006 stating that the Proposals for the appointment of the petitioner will be considered only after the lifting of the ban. I submit that the Hon’ble Court vide orders dated 09.08.2007 passed interim directions as prayed for by the petitioner. I humbly submit that in view of the ban orders issued by the Government in Memo No.12080/COSE/A2/2004 dated 20.10.2004 the Proposals of the 4th Respondent for the appointment of the petitioner on compassionate grounds could not be considered and the same will be considered when the Government lifts the ban. I submit that the Respondents 1 to 3 have great respect for the orders of the Hon’ble Court and there is no willful disobedience by the respondents and non consideration of the case of the petitioner is neither willful nor wanton but for the facts and reasons stated above and in view of the reasons and facts stated above I pray the Hon’ble Court to vacate the interim order dated 09.08.2007 and further pray the Hon’ble Court to close the Writ Petition and pass such order or orders as may deem fit and proper in the circumstances of the case. When the vacate stay petition came up for consideration, with the consent of both the parties, the Writ Petition is taken up for final disposal. Heard the learned counsel for both the parties. Learned counsel for the petitioner submits that the appointment of the petitioner as Attender on compassionate grounds is prior to the imposition of the ban orders, which came into effect on 20.10.2004 and therefore, the proposals sent by the District Educational Officer, Hyderabad, for approval of the appointment of the petitioner as Attender on compassionate grounds need to be approved by the Government. In a way, he submits that the ban order cannot be made applicable to the compassionate appointment of the petitioner as Attender in the fourth respondent-School. Learned Government Pleader for School Education submits that the proposal sent by the District Educational Officer has been returned in view of the ban imposed by the Government under Memo No.12080/COSE/A2./2004-4, dated 20.10.2004. The issue involved in the Writ Petition is:- whether the ban orders dated 20.10.2004 can be made applicable to the proposal sent by the fourth respondent for approval with regard to the appointment of the petitioner as Attender? It is not in dispute that the petitioner’s father worked in the fourth respondent-School as Lab Assistant and he died while in service. The petitioner made an application for compassionate appointment. Thereupon, the fourth respondent-School considered to appoint him as Attender on 01.08.2004 and sought approval from the District Educational Officer. The file with regard to the approval has been processed and the Deputy Educational Officer has sent the file to the Government with favourable recommendation. The Government returned the recommendation of the District Education Officer on the ground that ban has been imposed under Memo No.12080/COSE/A2/2004-4 dated 20.10.2004. Learned counsel appearing for the petitioner, by referring to G.O.Ms.No.349 dated 01.06.1984, submits that the compassionate appointment rests within the exclusive domain of the management of the School and no prior approval is required in such cases. He laid much emphasis on the relative operation of Memo No.12080/COSE/A2/2004-4 dated 20.10.2004, which reads as under. Government after careful examination of the proposal of the D.s.E. in light of the orders of the Hon’ble High Court, hereby accord permission to fill up 123 aided posts, which were already permitted by the competent authorities to the managements of various schools shown in the annexure to this order. It is explicit from the record that the fourth respondent appointed the petitioner on compassionate grounds as Attender as on 01.08.2004. Proposals have been sent to the District Educational Officer, Hyderabad, on 31.08.2004 for approval. The ban orders came to be imposed on 20.10.2004. The approval sought for is much prior to the imposition of the ban order. The Government is not justified in rejecting the proposal with regard to the approval of the petitioner’s appointment as Attender in fourth respondent-School. Accordingly, the Writ Petition is disposed of directing the Regional Joint Director of School Education, Hyderabad, to consider the proposal sent by the third respondent with regard to the approval of the petitioner’s appointment as Attender and pass appropriate orders within a period of four {4} weeks from the date of receipt of a copy of this order. No costs. _______________________ (B.SESHASAYANA REDDY, J) 10th February 2009 RRB