THE HON’BLE SRI JUSTICE C.V.RAMULU W.P.No.16472 of 2006 ORAL ORDER: This writ petition is filed seeking a Mandamus declaring the proceedings in Rc.No.12087/A3/05 dated 20.4.2006 issued by second respondent rejecting the claim of petitioner for absorption into grant-in- aid post of Junior Assistant in Nrupatunga High School, Lingampalli, Kachiguda, Hyderabad as arbitrary, illegal and violative of Articles 14, 16 and 21 of the Constitution of India and consequently direct the respondents to absorb the petitioner as Junior Assistant with effect from 13.5.1988 with all consequential and attendant benefits. It is the case of the petitioner that he was initially appointed as Attender/Record Assistant on 23.7.1977 in Nrupatunga High School, run by third respondent society. Thereafter, vide order dated 24.8.1981 he was promoted as Lower Division Clerk (LDC) now re- designated as Junior Assistant with effect from 1.7.1980. Thereafter, petitioner made a representation to the respondents to absorb him in the grant-in-aid post of Junior Assistant, which fell vacant in the year 1988. According to the petitioner, though the third respondent sent proposals to the second respondent, ultimately the second respondent passed impugned proceedings dated 20.4.2006 rejecting petitioner’s claim for absorption into grant-in-aid post of Junior Assistant. Hence this writ petition. A detailed counter affidavit has been filed by the respondents 1 and 2 denying the allegations made by the petitioner and stated that petitioner was appointed as Attender/Record Assistant on 23.7.1977 in the pay scale of Rs.165-250 in Nrupatunga Junior College in unaided post and not in Nrupatunga High School. Later on, he was promoted by the management to the post of LDC/Junior Assistant in the unaided category in the scale of Rs.425-650 with effect from 1.7.1980 in Junior College only, as the petitioner was appointed in unaided post in Nrupatunga College governed by different service rules. Further, the post held by the petitioner was not a feeder category; whereas the management is asking for absorption from unaided post of Junior College to aided post of Nrupatunga High School, as such the relief claimed is not maintainable in law. Regarding his juniors, P.Raghunandan who was appointed as Record Assistant in Nrupatunga High School since 13.6.1977 in aided post, was promoted during the year 1980 by the management. There was no appeal filed by petitioner at that time claiming the post of Record Assistant or Junior Assistant. When Sri Jayatheertha Desai, Record Assistant absorbed in grant-in-aid post with effect from 1.10.1979, petitioner was enjoying LDC/Junior Assistant scales w.e.f. 1.7.1980 in the unaided post in Nrupatunga College and he did not ask for Record Assistant in grant-in-post held by Jayatheertha Desai till the year 1989. Hence, belated claims needs no consideration in the matter after a long span of (8) years. Moreover grant-in-aid employees only have to considered for promotion from the feeder category. It is further stated in the counter that as per G.O.Ms.No.524 dated 20.12.1988 the appointment of teaching and non-teaching staff in all schools is to be done only by Staff Selection Committee as per Rule15 1(a)(b) of G.O.Ms.No.524. As per Rule 7(a), the existing educational agency, should send the list of selected candidates whom they had appointed, to the competent authority in the prescribed form within a period of three months from the date of issue of the rules for approval of appointments, if not already got approved. As per Rule 7(b), in case the educational agencies failed to get the appointment already made approved within stipulated period, all such posts shall be treated as vacant and the educational agency shall take action for filling of post by the procedure prescribed in sub-rule (2) of Rule 15, but these rules have not been followed in the case of petitioner. The appointment of the petitioner has not been approved by the competent authority. The alleged appointment appears to be not in accordance with rules and without approval. The claim of the petitioner was considered and rejected as per the norms vide proceedings dated 20.4.2006. In view of the same, the absorption of the petitioner from unaided post of Junior College to an aided post of High School is not feasible for consideration according to rules. According to the learned counsel for petitioner, the management has not followed the recruitment procedure laid down in G.O.Ms.No.524 Education dated 20.12.1988 and G.O.Ms.No.1 dated 10.1.1994 while rejecting the claim of the petitioner. The reasons assigned in the impugned proceedings for rejecting the claim of the petitioner are arbitrary and without any basis. According to the learned counsel, many of the employees who were similarly situated to that of petitioner were all absorbed in grant-in-aid posts, whereas the petitioner was treated differently. To support his contention, the learned counsel for petitioner placed reliance on the judgment in K.C.HIGH SCHOOL, KORTHAREDDYPALEM, GUNTUR AND OTHERS v. GOVT. OF ANDHRA PRADESH, EDUCATION DEPARTMENT, SECRETARIAT, SAIFABAD, HYDERABAD AND OTHERS[1] and the order passed in W.P.No.21618 of 1998 dated 13.8.2004. According to the learned counsel appearing for respondents, petitioner was appointed in unaided post in Nrupatunga Junior College and now he is seeking absorption into aided post in Nrupatunga High School, which are governed by different service rules and absorption is not feasible and further, there is no record available to show that the post held by the petitioner was approved by the Department. I have given my earnest consideration to the respective submissions made by the learned counsel on either side and perused the impugned order and other material made available on record. It appears, originally the third respondent institution is a Multi- Purpose Higher Secondary School with 10+2 scheme and later it was converted into Junior College. Therefore, the School and the Junior College are not different and independent units. The Government itself has permitted the college to be converted into Junior College plus High School. Petitioner is the senior most Junior Assistant in the entire institution as on the date when the vacancy arose due to retirement of one F.Gopal Rao. The other reason for rejection of the case of the petitioner appears to be that he was not appointed in accordance with the procedure contemplated under G.O.Ms.No.524 dated 20.12.1988 and G.O.Ms.No.1 dated 1.1.1994. In fact, petitioner was appointed by promotion as Junior Assistant with effect from 4.8.1981 and whereas, the Government Orders came into force with effect from the years 1988 and 1994 respectively. This procedure cannot be made applicable retrospectively in case of petitioner and he cannot be asked to undergo selection by virtue of the subsequent rules framed. The claim of the petitioner is only for absorption of his services in the aided vacancy from unaided post. The procedure contemplated under G.O.Ms.No.524 dated 20.12.1988 and G.O.Ms.No.1 dated 1.4.1994 is applicable only for direct recruits and not for absorption from unaided to aided. The instructions issued by the Director of School Education vide proceedings dated 16.3.1990 indicates that the aided post has to be filled by absorption of senior most unaided Teaching and Non-Teaching staff of aided institutions and promotions from feeder category. Now at this length of time, after lapse of three decades, petitioner cannot be asked to undergo the process of selection. The averment of the petitioner that Government had approved appointments of several similarly placed candidates from unaided to aided posts as per the proposals submitted by the management is not disputed. Petitioner had referred to several such instances stating that vide proceedings of the District Educational Officer in Rc.No.1910/C4/2002 dated 19.10.2002; Rc.No.1929/C3/2003 dated 3.1.2004 and Rc.No.2677/C3/99 dated 13.12.1999 services of B.Purnachandra Rao, Secondary Grade Teacher in A.S.S.T. Aided Elementary School, S.Konda; Smt.C.Madhavi, P.V.R. Aided Upper Primary School, Dwarakapadu, Martur mandal and Sri P.S.H.Srinivasa Rao, V.P.V.R. Aided Upper Primary School, Dwarakapadu, Martur Mandal, respectively were absorbed. However, such a benefit was not extended to the petitioner. As per the staffing pattern fixed under G.O.Ms.No.2063 dated 25.8.1969, there were three posts of Attenders and three posts of Peons which are now re-designated as Record Assistants and Attenders and the said posts were admitted to grant-in-aid. Under those circumstances, it cannot be said that there were no vacancies in the cadre of Junior Assistant. In fact, management also informed the vacancy position and staff working from time to time vide letter dated 7.12.2004. As per the said letter dated 7.12.2004, one vacancy of Lower Division Clerk, one vacancy of Typist and three posts of Attenders and three posts of Peons were vacant, which are permitted to grant-in-aid. Hence, rejecting the case of the petitioner on the ground of non-availability of vacancy is arbitrary, illegal and violative of Article 14 of the Constitution of India. The petitioner is seeking absorption into already available aided vacancy. Further, the respondents could not have rejected the case of petitioner on the ground that the post, which had arisen, was in High School, and petitioner was appointed in Junior College. In fact, the High School and Junior College are under one roof and under one administration. The Multipurpose High School after 1969 has been made into 10+2 structure. For all the above reasons, the writ petition is allowed and the impugned order is set aside. The respondents are directed to absorb the petitioner into grant-in-aid post of Junior Assistant existing in Nrupatunga High School, Lingampally, Hyderabad with effect from the date of recommendation made by the management on 5.11.1989 and pass appropriate orders, as per law. Further, petitioner is entitled for all monetary benefits notionally and is not entitled for any back wages etc. There shall be no order as to costs. ______________ C.V.RAMULU, J Date: 21.10.2010 DA THE HON’BLE SRI JUSTICE C.V.RAMULU W.P.No.16472 of 2006 21.10.2010 IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD THE HON’BLE SRI JUSTICE C.V.RAMULU W.P.No.16472 of 2006 Date: 21st October, 2010 Between: N.Krishnaiah .. Petitioner And The Director of School Education, Government of A.P., Hyderabad & others. .. Respondents [1] 1997(6) ALD 331(DB)