THE HONOURABLE SRI JUSTICE SANJAY KUMAR WRIT PETITION No.805 OF 2004 ____________DECEMBER, 2009. BETWEEN N.Sandhya Rani …Petitioner And Commissioner and Director of School Education, A.P. Hyderabad, and others. ….Respondents. THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.805 OF 2004 O R D E R The petitioner, a Secondary Grade Teacher in AVM Girls’ High School, Suryapet, Nalgonda District, the fourth respondent, challenges the Proceedings dated 10.09.2003 issued by the District Educational Officer, Nalgonda District to the extent it limited her absorption in the aided post from the date of the said proceedings and seeks a consequential direction to absorb her against the said post with effect from 18.04.1995 and to pay her the time scale applicable, without reducing the salary. The petitioner was appointed as a Secondary Grade Teacher (SGT) in the fourth respondent school after due selection by a Staff Selection Committee by way of an interview, in the year 1992. Her appointment was approved by the District Educational Officer, Nalgonda under proceedings dated 18.04.1995. Admittedly, this appointment was against an unaided post. Thereafter, it appears that the fourth respondent school submitted proposals for absorption of the petitioner against an aided post. Aggrieved by the inaction of the authorities in this regard, the petitioner along with another filed Writ Petition No.10983 of 2003 before this Court, which was disposed of by order dated 16.06.2003, directing the authorities to take action on the proposals submitted by the fourth respondent school as regards absorption of the petitioners therein against the vacancies of Secondary Grade Teacher and Record Assistant respectively and to pass appropriate orders in this regard within two months. Acting thereupon, the impugned proceedings dated 10.09.2003 were issued by the District Educational Officer, Nalgonda referring to the recommendation of the fourth respondent school dated 01.06.2002 and the order of this Court in W.P.No.10983 of 2003; and directing the absorption of the petitioner against the aided SGT post which was shifted from VVM High School, Huzurnagar to the fourth respondent school under proceedings dated 01.03.1999, with immediate effect. The grievance of the petitioner is with regard to the operation of such absorption being only from the date of the said order. It is her case that she is entitled to such absorption from the date of approval of her appointment, i.e. 18.04.1995. The second grievance of the petitioner is that her salary was reduced to Rs.1200/- per month upon her absorption in the aided post. She stated that she was drawing salary to the tune of Rs.4,003/- per month under the 1993 pay scales and that the same was reduced to a consolidated salary of Rs.1200/- per month after her absorption vide the impugned proceedings. Accordingly, she challenged the proceedings dated 10.09.2003 to the extent she was aggrieved thereby and also sought a consequential direction to the authorities both in respect of her absorption and also with regard to payment of the applicable time scale. In the counter filed on behalf of respondents 1 to 3, the third respondent being the District Educational Officer, Nalgonda, stated that the petitioner was appointed in the unaided post of SGT in the fourth respondent school on 15.06.1992 and the said appointment was approved by his office with effect from 18.04.1995 under proceedings of the same date. He also admitted that an aided SGT Post was shifted from Vijaya Vidya Mandir (Girls) High School, Huzurnagar, to the fourth respondent school under proceedings dated 01.03.1999 and that proposals for absorption of the petitioner in the said post were received from the Correspondent of the fourth respondent school under letter dated 01.06.2002. However, it is stated that the absorption was given effect only from the date of the proceedings, i.e., 10.09.2003. With regard to the reduction of the petitioner’s salary, it is stated that as per G.O.Ms.No.100 dated 16.08.2001 and Government Memo dated 30.08.2001 the petitioner was eligible for payment of stipend at Rs.1200/- per month for the first year and at Rs.1500/- per month during the second year. As per the counter, she would be eligible for payment of regular time scale after completion of two years on duty as per the Government Memo dated 19.12.2002 as clarified by the Commissioner and Director of School Education, Andhra Pradesh, Hyderabad, in proceedings dated 04.01.2003. Further, reference was made to amendment of Act 9 of 2000 by Act 5 of 2002 whereby only those aided teachers who were absorbed prior to 25.04.2000 were held eligible for the regular time scale and those absorbed after that date were categorized as not being eligible for such scale and would be eligible only for stipend during the initial two years. The documents referred to in the counter were also placed before this Court by the learned Assistant Government Pleader for School Education. The issue that arises for consideration is whether the petitioner is entitled to absorption in the aided post from an anterior date prior to the issuance of the proceedings dated 10.09.2003 and whether she is entitled to pay protection upon her absorption or whether she is to be paid only monthly stipend as per the Government instructions? Section 2 of the Andhra Pradesh Private Aided Educational Staff (Regulation of Pay) Act, 2000 (Act 9 of 2000) prescribes what is to be taken as eligible service for Government Schemes and Pension. Section 2 reads as under: “2. Eligible service for Government Schemes and Pension: - Every employee of private aided educational institution shall, from the date of approval of his appointment in a post duly admitted to grant-in- aid be eligible to count his service rendered after such date of approval for fixation of his pay and also his pension under the schemes formulated, made applicable or extended to the employees of private aided institutions from time to time.” This Act was amended by Amendment Act 5 of 2002 whereby the retrospective effect given to this Act from 10.01.1980 under Section 1(2) was done away with. The Government Memo dated 06.08.2001 also speaks of the retrospective effect of Act 9 of 2000 being done away with and the decision of the Government to implement the said Act with prospective effect i.e. from 25.04.2000 instead of 10.01.1980. This amendment has no real bearing on the present case though reference has been made to these two proceedings in the counter. In exercise of its powers under the Andhra Pradesh Education Act, 1982 the Government of Andhra Pradesh promulgated the Andhra Pradesh Educational Institutions (Establishment, Recognition, Administration and Control of Schools under Private Managements) Rules, 1993 (for short, ‘the Rules of 1993’) vide G.O.Ms.No.1, Education (P.S.2), dated 01.01.1994. Rule 12 of these Rules deals with appointment of staff in private management schools and provides under sub-rule (1) that the educational agency shall appoint staff as per the Government staff pattern and that such staff should possess the qualifications prescribed by the Government from time to time. Rule 12(4) prescribes that all educational institutions receiving grant-in-aid from the Government should notify vacancies to the Employment Exchange and in addition, advertise the same in Newspapers and are required to call the candidates for test and an interview. Rule 12(5) prescribes that aided schools are required to have a nominee of the District Educational Officer in the Staff Selection Committee constituted under Rule 12(2). By G.O.Ms.No.180, Education (PS-1) Department, dated 29.12.2000 the Government of Andhra Pradesh amended the aforesaid Rules by inserting Rule 12 (4-a), which reads as under: “(4-a) every selected candidate for the aided post of teacher shall be initially appointed as an apprentice for a period of four years from the date of joining duty. He or she work under general supervision of the Headmaster/Headmistress as the case may be. During the period of apprenticeship, he or she shall be paid a monthly stipend at a rate to the prescribed from time to time by the Government. On satisfactory completion of the period of apprenticeship he or she shall be appointed to a regular post with a regular scale of pay. The apprenticeship period shall count for probation.” Rule 12(4-a) was further amended by G.O.Ms.No.100, Education (PS- 1) Department, dated 16.08.2001, whereby the period of four years of apprenticeship was reduced to two years and the remuneration to be paid was fixed at Rs.1200/- per month for the first year and Rs.1500/- per month for the second year for Secondary Grade Teachers. By G.O.Ms.No.75, School Education (PS-2) Department, dated 23.09.2002, dealing with recruitment of vacant aided teaching/non- teaching posts and admission to grant-in-aid, the Government of Andhra Pradesh directed, under clause 6 thereof, that where the managements of private aided institutions had already obtained permission from the competent authorities and filled up the vacant posts duly following the recruitment procedure, the competent authority should approve such appointments forthwith and issue necessary orders in the matter, subject to the payment procedure prescribed in G.O.MsNo.100 dated 16.08.2000 being followed. It is however to be noted that in respect of qualified unaided staff who were appointed against sanctioned posts as per recruitment procedure and whose appointments were approved by the competent authority for consideration for absorption, certain guidelines were to be followed under Clause 7. Under sub-clause (v) thereof it is clarified that these guidelines were applicable for teachers already working in unaided posts and would not be applied for future appointees in unaided posts. It is relevant to note that under clause-7 dealing with absorption of qualified unaided staff, there is no stipulation with regard to adherence with the payment procedure prescribed in G.O.Ms.No.100 dated 16.08.2001. However, losing sight of this distinction, it appears that the Commissioner and Director of School Education, Andhra Pradesh, under his proceedings dated 24.09.2002 stated that the persons appointed and approved by the competent authority under Clause-6 as well as the persons absorbed into aided posts under Clause-7 of G.O.Ms.No.75, dated 23.09.2002 should be appointed as per G.O.Ms.No.100 dated 16.08.2001. When a clarification was sought in this regard by an unaided SGT who was absorbed in an aided post in Prakasham District, orders were issued by the Government of Andhra Pradesh in Memo dated 19.12.2002 stating that as the Amendment Act 5 of 2002 made Act 9 of 2000 operative from 25.04.2000, those whose appointments had been regularized/absorbed in aided posts prior to that date, would be eligible to enjoy the regular scales while those absorbed thereafter are not eligible for regular scales and they were to be paid stipend as per G.O.Ms.No.100 dated 16.08.2001. In the aforestated environment, the claims of the petitioner would have to be evaluated. So far as the issue of her absorption against the aided post from a prior date is concerned, it is to be noted that Section 2 of Act 9 of 2000 makes it clear that an employee of a private aided educational institution is entitled to count his/her service from the date of approval of his/her appointment in a post duly admitted to grant-in- aid. Sri M.Venkatram Reddy, learned counsel for the petitioner, contended that this Section has to be read in two parts and that the petitioner would be entitled to count her service from the date of approval of her appointment though such post was admitted to grant- in-aid thereafter. I am not willing to accept this construction placed on the provision in as much as the Section, if read as a whole, clearly manifests that the employee would be entitled to count his/her service from the date of approval of his/her appointment in a post duly admitted to grant-in-aid from the date of such approval. There is no break in the provision whereby the interpretation sought to be placed by the learned counsel can be accepted. Therefore, the petitioner would not be entitled to seek absorption in the aided post with effect from the approval of her initial appointment in the unaided post, i.e. 18.04.1995. However, it is to be noted that an aided post was shifted to the fourth respondent school under proceedings dated 01.03.1999 and the fourth respondent school submitted proposals for absorption of the petitioner in the said post on 01.06.2002. There is no explanation forthcoming from the respondent authorities as to why this proposal was not acted upon. It was only after the petitioner approached this Court by way of W.P.No.10983 of 2003 that the respondents seem to have awakened and thereafter issued the proceedings dated 10.09.2003 directing the petitioner’s absorption in the aided post from that date. The inaction on the part of the authorities in this regard cannot be allowed to have an adverse effect on the petitioner when Section 2 of Act 9 of 2000 makes it clear that the date of absorption is crucial to the teacher in terms of entitlement and eligibility for the purposes of Government schemes and pension. All the more so, when the Government of Andhra Pradesh had also issued specific instructions with regard to filling up of vacant aided posts under G.O.Ms.No.75 dated 23.09.2002. The petitioner is therefore held entitled to absorption in the aided SGT post in the fourth respondent school from the date the proposal was submitted in this regard by the fourth respondent, i.e., 01.06.2002. In so far as the grievance of the petitioner with regard to the payment procedure adopted by the authorities is concerned, it is to be noticed that in G.O.Ms.No.75 dated 23.09.2002, a distinction was drawn between appointments made by private aided institutions as per procedure under Clause 6 and absorption of qualified unaided staff already working in such private aided institutions under Clause 7. Clauses 6 and 7 of G.O.Ms.No.75 dated 23.09.2002 are extracted hereunder for better appreciation: “(6) Where the managements of Private Aided Institutions have already obtained permission from the competent authorities and filled up the vacant posts duly following the recruitment procedure, the competent authorities concerned shall approve such appointments forthwith and to issue necessary orders in the matter. However, they should follow the payment procedure as prescribed in the G.O.7th read above. (7) Extreme care may be taken in respect of the qualified un-aided staff who were appointed against the sanctioned posts and as per the recruitment procedure, and whose appointments were approved by the competent authorities for consideration of absorption in the respective posts duly following the seniority, qualifications etc., in accordance with law. In such cases the following guidelines shall also be followed:- i. The posts should have been sanctioned by the competent authority as per the teacher pupil ratio. ii The candidate must possess the qualifications as prescribed for each category of post for Government/Local Body Teachers. iii. If more than one candidate is working in a sanctioned un-aided post of same cadre and all of them satisfy the conditions prescribed, absorption in the vacant aided posts shall be done as per seniority in un-aided posts. iv. Where there is a feeder category for promotion, the vacant aided posts shall be filled in the ratio of 2:1 i.e., 1st and 2nd posts by promotion and 3rd by direct recruitment/absorption. v. These guidelines are applicable for teachers already working in unaided posts and shall not be applied for future appointees in unaided posts. vi. In future there shall not be any approval by the department for recruitment to un-aided post and hence no question of any absorption in future. The management may fill up un-aided posts if they require as per the staffing pattern and teacher pupil ratio with their own funds.” It is to be noted that under Clause 6, the payment procedure prescribed under G.O.Ms.No.100 dated 16.08.2001 is to be applied only for those persons who were appointed directly in the vacant posts as per the recruitment procedure. No such condition was prescribed under Clause 7 for those who were already working in unaided posts and who were absorbed against the aided posts. It is also relevant to note that sub-rule (4-a) of Rule-12 of the Rules of 1993, extracted hereinbefore, clearly indicates that it has application to only those who are freshly selected and appointed. Such appointees are required to be treated as apprentices and work under the supervision of the Headmaster/Headmistress and only after completion of their apprenticeship, such fresh appointees are to be appointed to a regular post with a regular scale of pay. This Rule can have no application to a teacher such as the petitioner, who was already working in an unaided post for over a decade. An experienced teacher would not be required to be placed on apprenticeship, as such procedure would be applicable to a raw recruit who has to gain experience in the art of teaching. Therefore, the application of sub-rule (4-a) of Rule 12 of the Rules of 1993 to the petitioner appears illogical and irrational. This construction is also supported by G.O.Ms.No.75 dated 23.09.2002, as aforestated. However, the amendment to Rule 12(4-a) of the Rules of 1993 under G.O.Ms.No.100 dated 16.08.2001 appears to have been misunderstood by the Commissioner and Director of School Education, Andhra Pradesh, as reflected by his proceedings dated 24.09.2002 wherein he equated the persons covered by Clause 7 to those covered by Clause 6 of G.O.Ms.No.75 dated 23.09.2002 and made applicable to them the payment procedure prescribed by G.O.Ms.No.100 dated 16.08.2001. The same misunderstanding seems to be reflected in the Memo dated 19.12.2002 issued by the Government upon the query raised by some other unaided SGT. Therein, the Government sought to draw a distinction basing on the date of coming into operation of Act 9 of 2000 by stating that those who were absorbed prior to that date would not be covered by the payment procedure under G.O.Ms.No.100 dated 16.08.2001 while those were absorbed thereafter would come within its ambit. There is no logic or rationale behind such an interpretation. Irrespective of the date of their absorption, the fact remains that those teachers who were already working in unaided posts would have gained experience from such service and cannot be equated with rookies who are yet to learn the ropes. The distinction sought to be drawn between such identically situated persons basing on the date of coming into operation of Act 9 of 2000 is arbitrary and unreasonable. Such an interpretation does not find reflection in the Government’s own instructions in G.O.Ms.No.75 dated 23.09.2002. The petitioner cannot therefore be treated as an apprentice and be made to suffer a reduction in her pay consequent to her absorption in an aided post. The same is ex facie illegal and unsustainable. In consequence, the writ petition is allowed in part directing the respondents to give effect to the absorption of the petitioner in the aided SGT Post in the fourth respondent school with effect from 01.06.2002 instead of 10.09.2003. Further, Rule-12(4-a) of the Rules of 1993 as amended by G.O.Ms.No.100 dated 16.08.2001 is held to have no application to the case of the petitioner and accordingly, the respondents are directed to pay the petitioner the regular time scale applicable to her from the date of her absorption instead of placing her on a monthly stipend. The amounts payable to the petitioner consequent to this order shall be computed and remitted within a period of three months from the date of receipt of a copy of this order. In the circumstances of the case, there shall be no order as to costs. -------------------------- SANJAY KUMAR,J ________DECEMBER, 2009 PGS