THE HONOURABLE SRI JUSTICE N.RAVI SHANKAR WRIT PETITION NO.537 OF 2006 Dated: 04.08.2011 Between: K. Mangatayaru …Petitioner And: The Regional Joint Director, School Education, Kakinada, East Godavari District and others …Respondents. THE COURT MADE THE FOLLOWING: THE HONOURABLE SRI JUSTICE N.RAVI SHANKAR WRIT PETITION NO.537 OF 2006 ORDER: In this writ petition under Article 226 of the Constitution the petitioner is seeking a writ of Mandamus or any other appropriate order or direction to set aside the 1st respondent’s proceedings in Rc.No.4165/A2/05, dated 25-10-2005, addressed to the Director of School Education seeking a clarification and for a direction to the 1st respondent to approve the appointment of the petitioner as an Attender and admit her or her post in the grant-in-aid scheme w.e.f. 27-1-2005. 2. The circumstances under which the above relief is claimed by the petitioner can be stated as follows. By an order dated 24-1- 2005, the Correspondent of the 2nd respondent appointed the petitioner on compassionate grounds as an Attender following the death of her husband K.Kasulu who died in service while working as a Librarian in the 2nd respondent college. It must be stated here that in the said order dated 24-1-2005, the Librarian post in which the petitioner’s husband worked is described as a grant-in-aid post and further the post of Attender to which the petitioner was appointed is also described as aided vacant post. However in the appointment order dated 24-1-2005, the petitioner was ordered to be paid a consolidated amount of Rs.1,000/- per month and her appointment was described as temporary subject to approval of qualification relaxation and admission to grant-in-aid orders from the competent authority i.e. the Commissioner of School Education, Government of A.P. 3. It must also be stated here that earlier this Court in W.P.No.20937 of 2004 filed by the petitioner herself, gave a direction for implementing the earlier order of the District Collector, Visakhapatnam which directed that she should be given a compassionate appointment. It was pursuant to the order in the said writ petition the aforesaid appointment order dated 24-1-2005 was given by the 2nd respondent subject to the conditions mentioned therein. 4. Subsequently the Director of School Education by his proceedings in L.Dis.No.4297/D1-4/2004, dated 8-7-2005, relaxed the condition relating to educational qualification. Thus the first condition stipulated in the appointment order dated 24-1-2005 relating to the appointment of the petitioner has been complied with. It is represented that the petitioner has also subsequently acquired the necessary educational qualification for the post in question. Thereafter the 2nd respondent college also addressed letter No.18/2005 dated 27-7-2005 to the 1st respondent Regional Joint Director of School Education, Kakinada mentioning the circumstances under which the petitioner was appointed as Attender in the existing aided post and requested him to approve the appointment of the petitioner and admit her into grant-in-aid scheme relating to the said post w.e.f. 27-1-2005 which is the date on which she joined the said post. It is seen that another letter in Rc.No.1879/B4/04 dated 25-8-2005 was also addressed by the 3rd respondent District Educational Officer to the 1st respondent requesting him to approve the appointment of the petitioner. 5. Thereafter the 1st respondent Regional Joint Director addressed his letter in Rc.No.4168/A2/05-2 dated 25-10-2005 to the Director of School Education seeking certain clarifications. The 1st respondent in his letter mentioned that Government have imposed a ban on recruitment in aided schools in Government Memo No.12080/COSE/A2/2004-4 dated 20-10-2004 and sought a clarification whether the said ban imposed is applicable to compassionate appointments also and also the appointment of the petitioner as her appointment was made pursuant to the direction of this Court given in W.P.No.20937 of 2004. It is seen that the Director of School Education did not send any clarification and the matter was kept pending at that stage. 6. The first ground relied upon by the petitioner is that the petitioner’s appointment was made much prior to the imposition of ban on recruitment and therefore the above Government Memo dated 20- 10-2004 is not applicable to her case. The second ground raised is that since her appointment was made under an order of this Court, the same should be approved and she should be admitted to grant-in-aid facility or scheme w.e.f. 27-1-2005 i.e. the date of her joining. 7. The 3rd respondent filed counter on behalf of the 1st respondent also. Their stand is that the ban imposed on recruitment in aided schools through Government Memo No.12080/COSE/A2/2004-4 dated 20-10-2004 is applicable to compassionate appointments also in aided schools and in fact the Government clarified it in their memo No.8544/PS-1/2005-D Education (SE-PS) Department dated 14-11- 2005 and this was communicated by the Director of School Education (1st respondent) through his Rc.No.463/S3/2005 dated 13-12-2005. This is not shown to be incorrect. It is also stated that the matter was still pending with the Government for orders and as soon as orders are issued, necessary action will be taken in the case of the petitioner. 8. The contentions or the grounds raised by the petitioner have already been set out supra. So far as the first ground is concerned, the Government memo imposing the ban referred to supra is dated 20-10- 2004. Admittedly the appointment of the petitioner was on 24-1-2005. Thus the appointment was made when the ban was in force. Hence, the contention of the petitioner that her appointment was prior to the above ban cannot be accepted. Further the petitioner did not challenge the ban as invalid and therefore, it is not necessary to go into the same. 9. Then turning to the second ground that her appointment was made pursuant to the orders in W.P.No.20937 of 2004, the said contention also cannot be accepted for this reason. It may be noted that the order in the said writ petition says that appointment of the petitioner made pursuant to that order shall be subject to the sanction made by the competent authority and relaxation that may be given by the competent authority. It can therefore be said that the order in above writ petition was not an absolute order, but it was a conditional one and the conditions are already mentioned supra. Thus even the sanction in relaxation from the ban should be given by the competent authority and so far as ban is concerned it can be only by the Government which has imposed the ban. Therefore, the plea of the petitioner that the 1st respondent Regional Joint Director was competent to approve her appointment and admit her to grant-in-aid scheme cannot be accepted. 10. At the time of arguments, the learned Government Pleader for Education relied upon G.O.Ms.No.113 Education (SE.PS.I) Department, dated 6-10-2009 and also a clarificatory memo i.e. Memo No.20360/SE.PS.I/A1/2010, dated 9-6-2010, issued by Education (SE.PS.I) Department of Government of Andhra Pradesh. It should be noted that G.O.Ms.No.113, dated 6-10-2009, reads that earlier there was a ban of creation/filling up of existing vacancies in aided posts in recognized aided schools even with regard to compassionate appointments and that the said ban has been lifted by the said G.O. w.e.f. 6-10-2009. Even the clarificatory Memo No. 20360/SE.PS.I/A1/2010, dated 9-6-2010 issued by the Government also reads that the Government have specifically confirmed that the aforesaid ban lifted through G.O.Ms.No.113 is only prospective i.e. w.e.f. 6-10-1999. In other words what emerges from the above GO.Ms.No.113 and above clarificatory memo is that at the time when the petitioner was appointed on compassionate grounds as Attender, there was a ban and her appointment was not permissible. However the petitioner has been appointed under the order of this Court subject to certain conditions and the conditions relating to qualification relaxation has been complied with, but not with regard to ban. 11. It is clear now that because of the above ban relating to compassionate appointment of grant-in-aid posts in recognized aided schools on the date on which the petitioner was appointed, the petitioner was not eligible, but since she was already appointed, it follows that she was not eligible to have the allowances paid as per the grant-in-aid rules. The petitioner has not challenged the above G.O.Ms.No.113 or the earlier ban. Further it is not shown under what provision this Court can usurp in the power of the Government or any competent authority appointed by it to exempt the petitioner’s appointment or her case from the above ban. At one stage, in the course of arguments, the learned counsel for petitioner contended that the authority should be directed to admit her to grant-in-aid scheme atleast from the date 6-10-2009 which is the date of the aforesaid G.O.Ms.No.113 and pay her the allowances. It may be noted that first of all the appointment of the petitioner itself can be said to be irregular as it was made during the period when the ban was in force. Thus as already stated supra, exemption can be granted to her only by the Government which imposed the ban or any competent authority in that behalf appointed by it. In view of this and the failure of the petitioner to show how this Court and under what provision can exercise that power when the appointments and payment of salaries are in the exclusive domain of the Government, the petitioner cannot be granted that relief also. 12. In the above circumstances, the petitioner is now directed to make a representation to the concerned authorities to get grant-in-aid for the post to which she was appointed and the said authorities may decide her application and dispose of it in accordance with G.O.Ms.No.113, dated 6-10-2009 or other Government orders or provisions relevant to that aspect. So far as the claim of the petitioner for payment of allowances under grant-in-aid scheme even prior to that period, it is always open for her to workout her remedies with regard to the same including the challenge of the above G.O.Ms.No.113 and the earlier ban. The authorities shall dispose of her representation as expeditiously as possible within a period of three months from the date of receipt of her representation having regard to the fact that in the petitioner’s appointment order the post to which she has been appointed is described as aided vacant post. 13. Accordingly with the above directions, the writ petition is disposed of. No costs. ___________________________ JUSTICE N.RAVI SHANKAR 4th August, 2011 Tjmr THE HONOURABLE SRI JUSTICE N.RAVI SHANKAR WRIT PETITION NO.537 OF 2006 Dated 04.08.2011