THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE R. KANTHA RAO W.P.Nos. 15522, 15523 and 15531 of 2010 Date:05.07.2010 W.P.No. 15522 of 2010 Between: The Government of A.P., rep., by its Principal Secretary, School Education Department, Secretariat Building, , Hyderabad and others. …Petitioner Vs. J.Shankar and others …Respondents W.P.No. 15523 of 2010 Between: The Government of A.P., rep., by its Principal Secretary, School Education Department, Secretariat Building, , Hyderabad and others. …Petitioner Vs. Ch.Pullaiah and others …Respondents W.P.No. 15531 of 2010 Between: The Government of A.P., rep., by its Principal Secretary, School Education Department, Secretariat Building, , Hyderabad and others. …Petitioner Vs. V.Saidulu and another …Respondents THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE R. KANTHA RAO W.P.Nos. 15522, 15523 and 15531 of 2010 Oral common order: (Per: THE HON’BLE SRI JUSTICE GODA RAGHURAM) Heard the learned Additional Advocate General for the State and the other petitioners. Sri S.Ramachandra Rao, learned senior counsel for the respondents 3 and 4 instructed by Sri K.R. Prabhaker, Advocate in W.P.Nos.15531, 15522 and 15523 of 2010 and Sri D.Prakash Reddy, learned senior counsel for the caveator/Respondent No.1 instructed by Sri M.Venkat Ram Reddy, Advocate in W.P.No.15531 of 2010. The common interim order of the learned Andhra Pradesh Administrative Tribunal (Tribunal), Hyderabad dated 28.06.2010, in O.A.Nos.4035, 4052 and 4050 of 2010 is assailed. By the order impugned, the Tribunal directed the writ petitioners to follow the Rule 7 of the Andhra Pradesh Direct Recruitment for posts of Teachers (Scheme of Selection), Rules 2008 (the 2008 Rules) issued in G.O.Ms.No.28 Education (Services VI) Department, dated 29.01.2009 and to apply 30% reservation to D.Ed candidates in the ongoing counseling of DSC-2008 for selection to the posts of Secondary Grade Teachers. The Tribunal further directed the petitioners 1 and 2 herein to issue necessary instructions to all the concerned officials to implement Rule 7 of the 2008 Rules in the present counseling of DSC-2008 while making selections to the posts of Secondary Grade Teachers. The chronology of relevant facts and the anterior series of litigation preceding the impugned order is adverted to hereunder, in brief: The State issued G.O.Ms.No.159, dated 05.12.2008 authorising the Director of School Education (DSE) to initiate the process of recruitment to fill up 50,063 sanctioned posts in various categories of teachers during year 2008-2009 and permitted the DSE to notify these vacancies in DSC-2008. The next day, the State issued the 2008 Rules, in G.O.Ms.No.161, Education Department, dated 06.12.2008. The 2008 Rules enumerate the method of recruitment, qualification and selection process for the several categories of teachers, including Secondary Grade Teachers, with which alone we are concerned in this lis. Consequent on the State Government’s authorization dated 05.12.2008, the DSE issued a recruitment notification on 06.12.2008 notifying vacancies in several categories of teaching posts and the schedule for recruitment. The notification dated 06.12.2008 refers to inter alia, the 2008 Rules issued in G.O.Ms.No.161. After the initiation of the recruitment process as above the State amended certain provisions of the 2008 Rules, by issuing G.O.Ms.No.28, Education Department, dated 29.01.2009. The State issued G.O.Ms.No.28 and the earlier 2008 Rules in purported exercise of its powers under the proviso to Article 309 of the Constitution read with specified provisions of the A.P. Panchayat Raj Act, 1994; third proviso to Section 74 of the Andhra Pradesh Municipalities Act, 1965 and Sections 78 and 99 of the Andhra Pradesh Education Act, 1982 To the extent relevant and material for the purposes of this lis, G.O.Ms.No.28 appended a proviso to Rule 7 of the 2008 Rules. The proviso reads as under: “Provided that 30% of the Secondary Grade Teacher posts are reserved exclusively for the candidates with D.Ed qualification. Both B.Ed. and D.Ed qualification candidates are eligible for the balance 70% of the Secondary grade Teacher posts and they will be selected on the basis of common merit in the DSC examination, duly following the other rules of recruitment as applicable.” The above proviso is subject to the final out come in the case pending with the Hon’ble High Court/Supreme Court.” The B.Ed qualified candidates who had applied to the vacancies notified on 06.12.2008, apprehending the application of this amendment to the ongoing recruitment of DSC 2008, approached the Tribunal by way of O.A.Nos.9172, 9173, 9766 and 9744 of 2009 challenging the earmarking of 30% vacancies exclusively for D.Ed qualified candidates as arbitrary and discriminatory and contending that the application of the amended provision to the ongoing selection is impermissible. By a common order dated 31.08.2009, the Tribunal dismissed O.A.No.9172 of 2009 and batch; upheld the amendment to the 2008 Rules by G.O.Ms.No.28 and held: “Though the amendment was issued subsequent to the date of notification for presentation of applications, by virtue of the extension of time for presenting the applications, it cannot be said that the amendment was made subsequent to the commencement of the selection process.” Aggrieved by the judgment dated 31.08.2009 of the Tribunal, the applicant in O.A.No.9172 of 2009 filed W.P.No.18683 of 2009 before this Court. In W.P.M.P.No.24441 of 2009 in the said writ petition, the petitioners therein did not seek stay or suspension of the order of the Tribunal in O.A.No.9172 of 2009 and batch, but sought stay of all further proceedings pursuant to G.O.Ms.No.28, dated 29.01.2009 insofar as it relates to the amendment to proviso to Rule 7 of the 2008 Rules. On this application, a learned Division Bench of this Court by order dated 09.09.2009 directed suspension of the proviso to Rule 7 of the 2008 Rules as amended in G.O.Ms.No.28 dated 29.01.2009, pending disposal of the writ petition. Aggrieved thereby, the D.Ed. qualified candidates filed S.L.P. (Civil) No.24396 of 2009. The Supreme Court by the order dated 18.09.2009 while adjourning the hearing of the S.L.P. to 07.10.2009 ordered that there shall be an interim stay as prayed for till then. It is conjointly submitted before us that in the S.L.P the appellants-D.Ed qualified candidates sought an ex parte stay of the interim order dated 09.09.2009 passed by this Court in W.P.M.P.No.24441 of 2009 in W.P.No.18683 of 2009. Thus, the Apex Court stayed the interim order of this Court suspending the proviso to Rule 7 of the 2008 Rules. By a further order dated 07.10.2009 the Apex Court while observing that adjudication in S.L.P. (Civil) No.24396 of 2009 should await its decision in S.L.P. (civil) No.27031 of 2008 along with S.L.P.No.30860 of 2008, directed that the interim order (dated 18.09.2009) should continue. In our considered view the interim suspension granted by this Court on 09.09.2009 stands eclipsed on account of the interim order dated 18.09.2009 granted by the Supreme Court and the continuance of such interim stay by its order dated 07.10.2009. On 21.06.2010, the State issued an order in G.O.Ms.No.27, apparently in exercise of its executive powers under Article 162 of Constitution, directing the DSC to issue a schedule for counseling for appointment of Secondary Grade Teachers, pursuant to the process of selection initiated for DSC-2008 and to complete the recruitment process to appoint eligible candidates for SGT posts strictly in accordance with the notification dated 06.12.2008; and directing that the candidates be initially appointed as apprentice Teachers purely on ad hoc basis subject to the final orders of the Supreme Court in Civil Appeal Nos. 7479 to 7485 of 2009 and S.L.P.Nos.24396 of 2009 and batch. Certain other instructions (which are not relevant for the purpose of this lis) have also been issued in this order in G.O.Ms.No.27. Aggrieved by the order in G.O.Ms.No.27, one D.Ed qualified candidate (a party to the earlier proceedings) filed Contempt Petition No.174 of 2010 before the Supreme Court alleging violation of the interim order of that court dated 18.09.2009 (staying the operation of this Court’s order dated 09.09.2009, suspending the proviso to Rule 7) and sought interim directions to the State to provide 30% reservation in favour of D.Ed candidates or in the alternative stay the process of the selections altogether. The Supreme Court is stated to have ordered notice on this application. Meanwhile, on 24.06.2010 D.Ed qualified candidates challenged the State Government’s order in G.O.Ms.No.27, dated 21.06.2010, in several applications being O.A.Nos.4035, 4050 and 4052 of 2010. By a common interim order dated 28.06.2010, impugned in these writ petitions the Tribunal, as already stated, issued a direction to follow Rule 7 of G.O.Ms.No.28 and to apply 30% reservations to D.Ed. candidates in DSC 2008 viz. the proviso to Rule 7 of the 2008 Rules as amended in G.O.Ms.No.28. The learned Additional Advocate General would contend that as the proviso to Rule 7 of the 2008 Rules ( as amended in G.O.Ms.No.28) was suspended by this Court in the interim order dated 09.09.2009 in W.P.M.P.No.24441 of 2009 in W.P.No.18683 of 2009, this provision is inoperative. The order by the State in G.O.Ms.No.27 dated 21.06.2010 is thus in conformity with this legal position. In our considered view, the contention of the State has to be rejected. The petitioners in W.P.No.18683 of 2009, who are B.Ed qualified candidates and applicants to DSC-2008 had challenged the common order of the Tribunal dated 31.08.2009 in O.A.No.9172 of 2009 and batch, but did not seek in W.P.M.P.No.24441 of 2009 a suspension or interim stay of the order of the Tribunal dated 31.08.2009. They sought suspension of the proviso to Rule 7 of the 2008 Rules (as amended in G.O.Ms.No.28). This Court by its order dated 09.09.2009 granted interim suspension. The D.Ed qualified candidates aggrieved thereby preferred an appeal to the Supreme Court which by its order earlier referred to, granted stay (of the interim suspension ordered by this Court on 09.09.2009). Therefore, on and from 18.09.2009, the suspension of the proviso to Rule 7 of the 2008 Rules is inoperable and the State is obligated to give effect to this statutory provision viz. the proviso to Rule 7 proprio vigore, particularly in the light of the judgment of the Tribunal dated 31.08.2009 in O.A.No.9172 of 2009 and batch interpreting this proviso as applicable to the ongoing selections of DSC-2008 as well. The interpretation of and the directions by the Tribunal, till the eclipse of the judgment by a Court of appellate or superior jurisdiction is the current final interpretation, binding on the Executive in our constitutional order. Till the order of Tribunal is eclipsed by an interim or final order of this Court or by any other appropriate Court or forum, the ratio of the judgment of the Tribunal would operate proprio vigore and compliance with its directions are a non-derogable obligation of the State. Sri S.Ramachandra Rao, learned Senior Counsel appearing for B.Ed qualified candidates contends that the proviso to Rule 7 of the 2008 Rules (as amended in G.O.Ms.No.28, dated 29.01.2009 after the process of recruitment had commenced by the issuance of recruitment notification dated 06.12.2008) cannot lawfully be applied to the DSC-2008. This is a contention that is stated to be rejected in this writ petition, where the judgment of the Tribunal in O.A. Nos. 9172 of 2009 and batch holding the amended proviso to Rule 7 of the 2008 Rules as applicable to DSC-2008) is not in challenge. No doubt that judgment is subject to review by this Court in W.P.No.18683 of 2009, but the validity of the conclusions and the ratio of that judgment/order of the Tribunal can only be subject matter of W.P.No.18683 of 2009. The validity of the common order of the Tribunal in O.A.No.9172 of 2009 is neither substantially nor collaterally in issue in this writ petition. Therefore this Court, in this writ petition by the State cannot go into validity of the reasoning or the conclusions of the Tribunal in O.A.No.9172 of 2009 and batch or the issue whether the amended proviso to Rule 7 of the 2008 Rules is applicable to the DSC-2008 selections. This aspect is concluded by the judgment of the Tribunal dated 31.08.2009 in O.A.No.9172 of 2009 and batch, subject only to the out come of W.P.No.18683 of 2009. Another contention by Sri S.Ramachandra Rao is that the impugned (interim) order of the Tribunal dated 28.06.2010 (directing the authorities to fill up the vacant Secondary Grade Teacher posts in the ongoing DSC-2008 selection process by reserving 30% to the D.Ed qualified candidates) is in utter breach of “judicial propriety and constitutionalism”, since it amounts to adjudicating an issue awaiting adjudication in the Supreme Court. Sri Ramachandra Rao would contend that it is an “elementary principle” that when a similar matter is pending adjudication before a superior court, the jurisdiction of a Court of inferior jurisdiction is eclipsed. We are unaware of any such principle contouring “propriety, constitutionalism or jurisdiction” nor is any precedential or other authority presented by Sri Ramachandra Rao, to support such a contention. The jurisdiction of a Court is the product of sovereign will either qua the Constitution or an appropriate legislation or a legislative instrument. An endowed jurisdiction continues in operation till eclipsed by the withdrawal of the sovereign will or an order of a Court of competent jurisdiction, withdrawing, suspending or invalidating the jurisdiction. The mere fact that a superior Court may be considering the correctness of an order passed by a Court of inferior jurisdiction either in appeal, revision, judicial review or by Special Leave would not ipso facto eclipse an available and operative jurisdiction. The Tribunal by its (interim) order, impugned herein, has in substance held that the (executive) order of the State in G.O.Ms.No.27 dated 21.06.2010 cannot stifle operation of the statutory rules issued in G.O.Ms.No.161, dated 06.12.2008 as amended in G.O.Ms.No.28, dated 29.01.2009, introducing a proviso to Rule 7 whereby and whereunder 30% vacancies in the category of Secondary Grade Teachers ought to be filled up exclusively by candidates with D.Ed. qualification. This provision (proviso to Rule 7 of the 2008 Rules) was already interpreted by the Tribunal in the order dated 31.08.2009 in O.A.No.9172 of 2009 and batch as applicable to the DSC-2008 selections as well and this order of the Tribunal has not been eclipsed by the order of this Court in W.P.No.18683 of 2009, or of any other Court, brought to our notice in this case. On the aforesaid analysis, the common order of the Tribunal dated 28.06.2010 in O.A.Nos.4035, 4050 and 4052 of 2010 is impeccable and warrants no interference. Accordingly, these writ petitions are dismissed at the stage of admission. There shall be no order as to costs. ____________________ GODA RAGHURAM,J ____________________ R. KANTHA RAO,J Date:05.07.2010 Kvrm/ccm HON’BLE SRI JUSTICE GODA RAGHURAM AND HON’BLE SRI JUSTICE R.KANTHA RAO W.P.Nos. 15522, 15523 and 15531 of 2010 (Per: THE HON’BLE SRI JUSTICE GODA RAGHURAM) Date:05.07.2010