IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE NINETEENTH DAY OF FEBRUARY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE GODA RAGHURAM WRIT PETITION NO : 24684 of 2003 Between: N. Nagabhushana Reddy, S/o. Ramachandrao D.A. Women's Junior College, Proddatur, Cuddapah District. ..... PETITIONER AND 1 The Government of Andhra Pradesh, Rep. by its Principal Secretary to Higher Education Department, Secretariat Buildings, Saifabad, Hyderabad. 2 The Secretary, Board of Intermediate Education, A.P., Vidya Bhavan, Nampally, Hyderabad. 3 The Commisioner and Director of Intermediate Education, A.P., Vidya Bhavan, Nampally, Hyderabad. 4 The Secretary and Correspondent, D.A. Women's Junior College, Proddatur, Cuddapah District. .....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 a writ of Mandamus after calling for the records relating to and connected with the Proceedings Rc. No. 2910/E 4-3-2002, dated 16-08-2003 of the 2nd Respondent and set-aside the same by declaring it as illegal, arbitrary and violative of principles of Natural Justice and also violative of Articles 14, 16 and 21 of the Constitution of India and consequently direct the Respondents to approve the appointment of the petitioner as Lecturer in Civics in the existing aided vacancy in the 4th respondent college with all consequential benefits and pass. Counsel for the Petitioner: MR.V.AJAYAKUMAR Counsel for the Respondent No.: GP FOR EDUCATION The Court made the following : THE HONOURABLE SRI JUSTICE GODA RAGHURAM W.P.NO.24684 OF 2003 ORAL ORDER The writ petition is filed for invalidation of the 2nd respondent’s order dated.16-08-2003 whereby the 2nd respondent declined to grant approval for the appointment of the petitioner as a Junior Lecturer in Civics in DAW Junior College (for short “the College”), Proddutur, Kadapa district. A substantive and aided vacancy in the post of Junior Lecturer in Civics in the 4th respondent-College existed. The State government in a memo dated.21-09-2000 directed the 3rd respondent to permit the 4th respondent-Management to fill up the post. The 3rd respondent by an order dated.30-10-2001 nominated a Government representative in the selection committee for making selection for the said post in the College. The selection committee was duly constituted in terms of the order of the State Government in G.O.Ms.No.12, dated.10-01-1992. The petitioner applied for the vacancy and appeared at the selection conducted by the duly constituted selection committee. He was selected and appointed as a Junior Lecturer by the order of the 4th respondent dated.01-01-2002 in the available aided vacancy. The petitioner assumed charge on 02-01-2002 and is working till date without a break in service. Despite the above process of selection and appointment, as no orders were passed by the 2nd respondent approving the selection and thereby entitling the petitioner to salary from the grant in aid, the petitioner submitted numerous representations to the several respondents. There being no resonance to these, he filed W.P.No.6305 of 2003. By the order dated. 10-04-2003 this Court disposed of the writ petition directing the 2nd respondent to pass appropriate orders on the management’s proposals for approval of the petitioner’s appointment, within four weeks. By the order impugned the 2nd respondent rejected the proposals and declined grant of approved. In the impugned order it is recorded that the approval is rejected for the reason that the petitioner, a male candidate, was appointed in a women’s college, contrary to the Rules/instructions of the Board of Intermediate Education(BIE) and therefore the proposals for approval of appointment are rejected. The petitioner challenges the order impugned on several grounds; (a) That the 1st respondent-State neither at the time of granting permission to the 4th respondent College to fill up the post of Lecturer in Civics; nor the 3rd respondent while communicating the said permission of the 1st respondent and deputing a government nominees on the selection committee; nor the selection committee which interviewed the petitioner informed him about his ineligibility as a male candidate for appointment in a women’s college. (b) The selection committee by the minutes dated.28-12- 2001 clearly certified that all the rules and procedures for selection/promotion to the post of Lecturer/Contingent Lecturer( aided/un-aided) as prescribed by the Government/Commissioner of Collegiate Education and as reiterated in the Commissioner’s proceedings dated.18-09-1998, were strictly followed while selecting candidates for appointment. In view of this certification by the selection committee the respondents are estopped from contending that the petitioner is ineligible to be appointed; (c) That the 3rd respondent by the proceedings dated.11-09-1991 had approved the appointment of one Ch.Babu, a Junior Lecturer in Commerce in the 4th respondent College itself and in an aided post; (d) That the respondents had appointed a number of male candidates (as specified in para 9 of the writ petition) to various girls colleges; (e) That other male lecturers were appointed at the age of 40 years and even below in several government Junior Colleges for girls in the same district, Kadapa, as pleaded in para.10 of the writ petition; (f) That in several other girls colleges also a number of male Lecturers were appointed all over the State and therefore singling out the petitioner constitutes an act of hostile discrimination. The petitioner seeks a consequent direction to the respondents to approve his appointment as Junior Lecturer in Civics in the existing aided vacancy in the 3rd respondent College with all consequential benefits. In response to the averments in the writ petition on behalf of the respondents, a raft of counter-affidavits have been filed in succession. The 1st respondent though the Principal Secretary, Higher Education Department filed a counter-affidavit dated.03-10-2007. In para.4 of this affidavit it is pleaded that the State Government in G.O.Ms.No.12, Education Department dated.10-01-1992 laid down the procedure for selection of Junior Lecturer in private aided degree and junior colleges in the State. The permissions accorded by the State Government and the other respondents for filling up the aided Junior Lecturer vacancy in Civics Department in the 4th respondent College, is admitted. The process of selection and the selection of the petitioner is also admitted. It is also admitted that proposals were received by the 2nd respondent for approval of the petitioner’s appointment. It is pleaded in para.5 that as per Rule.7(1) of the Rules issued in G.O.Ms.No.939, Education Department, dated.10-09-1973 women are to be preferred for posts in institutions specially provided for them, if no suitable and qualified women are available for appointment under Rule.3 of the said G.O., men members of this class who are not below the age of 45 may also be appointed for such time as suitable and qualified women become available. The further contention is that since the petitioner was below the age of 45 years on the date of his appointment, his appointment as Junior Lecturer in Civics was disapproved by the 2nd respondent. The 1st respondent also pleads that an explanation was called for from the management of the 4th respondent for recruiting the petitioner, a male who was below 45 years of age. In response, the management stated that interview cards were posted to nine(9) candidates and only three male candidates attended and no women candidate turn up for interview; the post of Junior Lecturer in Civics was vacant for the past 17 years and students were agitating for a Civics Teacher and therefore the selection committee had no option to select one amongst the three male candidates. As the above explanation of the management was not satisfactory, the approval of the petitioner’s candidature was rejected but no action was initiated against the college management nor any against the Regional Inspection Officer, Kadapa who was a representative of the BIE in the selection process. Responding to the allegation of discriminatory treatment, the counter asserts that at present out of the Junior Lecturers mentioned in paras 9 and 10 of the writ petition except Sri KSSN Reddy, the others are working at various government Co-Education Colleges and that Sri KSSN Reddy who has now crossed 46 years is working in the Government Junior College at Jammulamadugu, Kadapa District. The petitioner’s allegations are admitted (in paras 10 and 11of the counter). The petitioner’s allegations that several others less than 40 years of age have been appointed in government junior colleges for women, is equivocally admitted. The 1st respondent contends that the gender/age criterion in respect of male staff must be observed more scrupulously for aided colleges since they are not transferable as in Government junior colleges. The 2nd respondent has filed two counter-affidavits, one on 22-01- 2007 and other on 20-09-2007. The latter counter is filed to make up the lacunae in the first counter-affidavit. The 2nd respondent broadly reiterates the averments in the 1st respondent’s counter-affidavit. Responding to the allegations in Para.8 of the writ petition regarding the appointment of Sri Ch.Babu as Junior Lecturer in Commerce in the 4th respondent College itself, the additional counter of the 2nd respondent dated.20-09-2007 at para.7 asserts that Ch.Babu was appointed as Junior Lecturer in Commerce on approval by the competent authority and that the record discloses that he was selected by the A.P. College of Service Commission and allotted to the 4th respondent college. This counter of the 2nd respondent fails to clarify why, if the relevant rules unambiguously prohibit appointment of any male Lecturer or at any rate a male Lecturer below 45 years of age in a women’s college, Ch.Babu was appointed as Junior Lecturer in the Commerce in the 4th respondent college. The 3rd respondent has filed a counter-affidavit on22-09-2007. With respect to the appointment of Ch.Babu as a Junior Lecturer in Commerce in the 4th respondent college itself, para.5 of this counter asserts that the Secretary, AP College Service Commission on 08-03-1995 had informed the 4th respondent college that the Government by an order in G.O.Ms.No.36, Education Department, dated.28-02-1990, had extended the application of the Presidential order relating to local areas in respect of faculty appointments to aided junior colleges also and that the Secretary APCSC had also informed the 4th respondent college that no women candidates are available under the reserved category and therefore a male candidate is selected and allotted to the college while directing the 4th respondent to issue appointment order to Sri Ch.Babu. Eventually the 3rd respondent granted approval for the appointment of Ch.Babu and no approval of the 2nd respondent is required for candidates allotted by the APCSC under Direct Recruitment quota. From the above counter-affidavit of the respondent Nos.1 to 3, one thing is clear. That each respondent tries to throw the blame for irregularity on the other. There is no synergy or coherence in the adoption or execution of law by the several actors of the State. It is almost as if there are a plurality of independent States represented by these several respondents and as though each of these respondents is an independent island of sovereignty and distinct laws. Distressingly, the official respondents intend to convey an impression that each of them is governed by separate, independent and unconnected legal regimes, each operating as a public authority wholly independent and governed by independent legal regimes unconnected with the other State actors. The rule in issue (Rule-7) issued in G.O.Ms.No.939is not pleaded by any of these respondents to be inapplicable either to junior colleges for women or government degree colleges or private aided degree or junior colleges; nor is it contended that the rule goes in to eclipse when a recruitment is made by APCSC. After all, APCSC is but a mere recruiting agency governed as much by the Rules as is a selection committee constituted by an executive order. It is distressing that across the hierarchy of government, the Commissioner and Director of BIE, Secretary BIE, and the Principal Secretary Higher Education regardless of the basic qualification, training or cutting edge status, they all share the same irrelevant view that there is no uniform law applicable to all the State actors. Adhoc Rules for temporary posts of Junior Lecturers in Government Junior colleges in the State were issued in G.O.Ms.No.939, Education Department, dated.19-09-1973. The peroration of the Rules enjoins that these are deemed to have been came into force from 01-08-1969. These Rules are issued in exercise of the powers conferred by proviso to Article.309 of the Constitution read with President’s Order G.S.P.No.14(E), dated.18-01-1973. Rule 7 of these Rules being relevant, is extracted: “ Appointment in institutions specially provided for Women: 1) Women shall be preferred to posts in an institutions specially provided for them. 2) A vacancy in an institution specially provided for women shall be filled by transfer of a woman member of the service, employed in an institution not specially provided for women. When such transfer is not possible, any women may be appointed by any of the methods specified in rule.3, but she shall not acquire by reason only of such appointment, any right in the matter of seniority or full members until she gets her due turn. 3) If suitable and qualified women are not available for appointment under rule 3, men members of this class who are not below 45 years of age may be appointed for such time as suitable and qualified women become available. On a true and fair construction of the provisions of Rule.7, the conclusion is irresistible that a generic preference is enjoined in favour of women to posts in educational institutions specially provided for them. Rule.7(3) of the Rules enjoins that if suitable and qualified women are not available for appointment u/Rule-3, male members of this class who are not below the age of 45 years may be appointed for such time as suitable and qualified women become available. Clearly and ex facie, the Rules having been made in exercise of the power available under the proviso to Article.309 of the Constitution and in the light of the mention in Rule.1(1) that the temporary posts of Junior Lecturers in Government Degree and Junior Colleges shall constitute a separate class in the A.P. Educational Subordinate Service and in Rule.1(2) that the General and Special Rules applicable to the holders of permanent posts in the A.P. Educational Subordinate Service shall apply to the holders of the temporary posts of Junior Lecturers subject to the modifications specified in these Rules, it follows that these Rules apply to the temporary posts of Junior Lecturers in Government Degree and Junior Colleges in the State. Neither the invocation of the powers under the proviso to Article.309 of the Constitution nor the prescription that the post of Junior Lecturer constitute a separate class in the A.P. Education Subordinate Service leaves any manner of doubt that these rules are not intended to apply to aided posts of Junior Lecturer in private colleges. It is nobody’s case and particularly not of any of the official respondents that posts of Junior Lectures in aided private colleges are integral to the cadre of the A.P. Education Subordinate Service. It is not the case of any of the official respondents, either expressly or by any compelling implication, that the posts of Junior Lecturer in private aided colleges constitute Government service or posts in relation to or in connection with the affairs of the State as to warrant or justify the formulation of the Rules in exercise of the power under the proviso to Art.309 of the Constitution. Rule.2 of these Rules also places the matter beyond a shadow of doubt. Rule.2 enjoins that the Unit of appointment for the purposes of recruitment, appointment to this class, discharge for want of vacancy, seniority promotion, transfer and appointment as full member shall be the seven zonal units as specified therein. Meaning thereby that each post of Junior Lecturer in a College in each of the seven specified zones is a separate unit of appointment thereby enabling inter alia a transfer within such zone. It is certainly not the case of the official respondents that all of the Private aided junior colleges in each zone constitute an integrated unit for recruitment, appointment, discharge for want of vacancy, seniority , promotion or transfer. On the aforesaid analysis, the Rules issued in G.O.Ms.No.939 have no nexus with or application to appointments to the post of Junior Lecturer in private aided Junior Colleges. The chorused reliance by the official respondents on the provisions of Rule.7 of the Rules issued in G.O.Ms.No.939 is therefore the product of a total misconception on a non application of mind, to the trajectory of these Rules. Rule 7 of the Rules firstly mandates preference to women in institutions specially provided for women and Sub-Rule (3) of Rule 7 enjoins in uncertain and mandatory terms that where suitable and qualified women are not available for appointment, men who are not below the age of 45 years may be appointed till such time suitable and qualified women are available. In clear transgression of this mandate, appointments had admittedly been made, of a large number of male Lecturers to various Government Degree and Junior Colleges. It is rather distressing that the official respondents including the 1st respondent tried to explain away this clear transgression of a Rule issued by the Governor, by jejune, ambiguous and loose pleadings. Executive lack of fidelity to law and irresponsibility has now reached its apogee. It is still more perplexing that the official respondents rely on a clearly inapplicable set of Rules, issued in G.O.Ms. No. 939, to stonewall grant of approval to the petitioner. Neither injunctions of equality in State action nor the primary obligation of application of the executive mind to relevant and particular statutory rules to the post in question have deterred respondents 1 to 3 from considering the plight of the petitioner who was selected by the duly constituted selection committee in which a Government nominee was present and in a context where no female candidate had even appeared for the interview and the management was crying hoarse that the post of Junior Lecturer in Civics was vacant in the college for 17 years for want of a teacher. Sri Satyanarayana Prasad, the learned Senior Counsel appearing for the 2nd respondent would alternatively though creatively contend that even if the statutory rules issued in G.O.Ms. No.939 were inapplicable, it is open to the 2nd respondent to adopt the values of Rule-7 as an internal policy of the 2nd respondent – BIE and that the 2nd respondent has adopted such a policy and has uniformly declined grant of approval to any male candidates below the age of 45 years to an aided Junior College for Women. Statutory instruments merit a prima facie presumption of regularity and constitutionality. Inarticulate policy preferences generated by an instrumentality command no such presumption. Classification is a State function. The State may make a classification either by legislation or in exercise of executive power u/Art. 162 of the Constitution. It is not the contention on behalf of the 2nd respondent that the Secretary BIE is an authorized officer of the State, entitled to issue an executive order in exercise of powers u/Art. 162, by and in the name of the Governor of Andhra Pradesh. No such jurisdiction is either vouchsafed or claimed by Sri Satyanarayana Prasad, for the 2nd respondent. The 2nd respondent is an executive officer of a statutory body of the State viz., the Board of Intermediate Education. It cannot represent the State nor can any officer of such Board exercise the executive power of the State u/Art. 162 of the Constitution. In such context if the Board had adopted or evolved a policy to accord preference for women in women’s institutions, it would amount to a classification, a classification that is not made by the State either in exercise of Executive or Legislative power. A classification by the 2nd respondent does not enjoin a prima facie presumption for regularity. Even otherwise when the 2nd respondent contends (as a mere forensic exercise), that the Board adopted the policy underlying Rule-7 of the Rules the Board must satisfy why male lecturers below the age of 45 years vis-à-vis those above the age of 45 years, present a potential threat to the well-being of the inhabitants of private aided junior college for women. This obligation, the 2nd respondent does not discharge either in pleadings or in oral arguments. From the practice, though wholly illegal, equivocally admitted by the respondents 1 and 3, large scale appointments have been made to women’s Government and aided degree colleges and Government junior colleges for women, of men below the age, despite the prohibition in Rule7 of the Rules. At least in the executive perception (of the respondents 1 and 3) and therefore of the State it must be presumed that notwithstanding the Statutory Rules (which these respondents conveniently glass over, on irrelevant pleas of convenience, men within the age 45 years were appointed thereby potentially threatening the interests of women students in Government or aided degree and junior colleges. While on behalf of the 2nd respondent, Sri Satyanarayana Prasad, the learned Senior Counsel claims adoption of uniform policy nonverbally evolved, in fidelity to the inapplicable sub-rule (3) of Rule 7, the ambiguous and fig leaf justification for the appointment of Ch. Babu (who was admittedly below the age of 45 years, a male candidate and to the very same college i.e., the 4th respondent College) is that the 4th respondent was selected and allotted by the AP College Service Commission and the Government, respectively. On the aforesaid factual and legal analysis the contention urged on behalf of the 2nd respondent that the 2nd respondent adopted a policy akin to the policy contained in Rule-7 of the Rules, does not commend acceptance by this court and is hereby categorically rejected. No such uniform State convention is established. On behalf of respondents 1 to 3, no statutory regime apart from Rule 7 of the Rules is pleaded to jettison the lawful claim of the petitioner for grant of approval. In the circumstances the conclusion recorded in the impugned order that the selection and appointment of the petitioner “was not done as per the Rules of BIE” and “is not in accordance with the Rules/instructions of the BIE” is a reason which has no legal or factual basis. The order of the 2nd respondent bearing reference No. 2910/EG-3/2002, dated 16.8.2003 is accordingly quashed. As the respondents have arbiatrarily, without due application of mind; oblivious to the repetitive conduct of respondents 1 and 3, of transgressing the provisions of Rule-7, the conduct of 3rd respondent in appointing Ch. Babu as Junior Lecturer in R-4 College itself; and totally oblivious to the position in law that the Rules issued under the proviso to Art. 309 in G.O.Ms. No. 939 have no application even on their terms to the posts of Junior Lecturers in private aided colleges, have issued the impugned order dated 16.8.2003 rejecting grant of approval for the appointment of the petitioner, this court considers it appropriate to impose costs. Accordingly the writ petition is allowed. The respondents, in particular the 2nd respondent is directed to reconsider the proposals regarding grant of approval for appointment of the petitioner as a Junior Lecturer in Civics in the R-4 College with expedition and in any event within a period of 7 days from the date of receipt of a copy of this order. If the petitioner is found suitable and eligible for approval of his appointment, the respondents 1 to 3 shall take appropriate executive measures to ensure that the petitioner is paid the salary and allowances as he would be entitled to, on the incumbency of an aided vacancy, including arrears of such salary and allowances, w.e.f. the date of his appointment and joining the post. As the respondents 1 and 3 have filed vague, evasive and unsustainable counter affidavits and the 2nd respondent has taken an arbitrary decision without due application of mind, each of the respondents shall pay costs to the petitioner in an amount of Rs.1,000/- (Rupees One Thousand only) and further costs of Rs.2,000/-