THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WP No. 10649 of 1998 ORDER: This writ petition has been instituted aggrieved by the action of the respondents in approving the appointment of the unofficial 5th respondent as Lecturer in Physics in Mrs. AVN College, Visakhapatnam instead of approving/regularizing the services of the petitioners as such. The writ petition has been instituted by two individuals. In view of certain subsequent developments, which are noticed hereinafter, the relief is confined only insofar as the 2nd petitioner is concerned. WPMP No. 21636 of 2007 has been moved seeking for an amendment of the relief prayed for in the writ petition, the modified relief that is sought for is therefore confined to the action of the respondents 1 and 2 in not issuing an order of appointment in favour of the 2nd petitioner as a Lecturer in Physics in Mrs.AVN College by holding the Memo issued by the State Government in its Higher Education Department on 3.7.2007 as illegal. The petitioners are said to be working on part time basis as Lecturer in Physics in Mrs.AVN College at Visakhapatnam, which is one of the reputed educational institutions of higher learning. The petitioners assert that they both possess M.Sc., Post Graduate qualifaction whereas the unofficial 5th respondent did not possess the requisite qualification for being considered and appointed as a Lecturer in Physics subject. The 5th respondent possess M.Sc., Post Graduate qualification in Resource Development Technology, which is not one of the eligible qualifications for recruitment to the post of Lecturer in Physics as set out by the academic affairs wing of Andhra University through their proceedings dated 14.9.1995. Mrs. AVN College has been receiving grant-in-aid from the State. Several posts both teaching and non-teaching therein have all been admitted to grant-in-aid. The State requires all institutions receiving aid from it to follow the principles of reservation in favour of schedule castes, schedule tribes and backward classes in the matter of recruitment. Both the petitioners belong to backward class group `D’ and therefore they ought to have been preferred in the matter of recruitment to the post of Lecturer in Physics. It has been asserted that out of 102 teaching posts admitted to grant-in-aid only one candidate belonging to schedule caste category and one candidate belonging to backward classes have been appointed while the remaining 100 teachers have all been appointed from the open category. It is thus asserted by the writ petitioners that the principles of reservation set out by the State Government have been followed in the breach, particularly when 25% of the vacancies are reserved to be filled in with backward class candidates. It has been brought out in the additional affidavit that the 5th respondent passed orders appointing the 1st petitioner herein, as a Lecturer in Physics on regular basis with effect from 14.10.1989 whereas the service of the 5th respondent ought to have been regularized with effect from 14.4.1998. The State Government has considered the entire issue as to whether the 2nd petitioner should have been appointed as a Lecturer in Physics due to the retirement of Dr.P.V.C.Sarma, Reader in Physics who retired on 30.11.2002 and Sri G.Venkateswara Rao, Lecturer in Physics who had retired thereafter. But, however, rejected the case of absorption/regularization of the service of the 2nd petitioner. Hence, this decision of he State Government is what has been sought to be put in issue. The State Government has filed its counter affidavit as well as an additional counter affidavit. It has been asserted that as per the qualifications spelt out by the University Grants Commision for recruitment to the posts of Lecturers in degree colleges, the selections have been confined to such candidates who possess the qualifications and such selections have been approved and hence the appointment of the 5th respondent cannot be taken exception to. The State Government has placed strong reliance upon the communication of the Andhra University dated 15.8.1995 pointing out that the Vice Chancellor upon consideration of the recommendations of the Board of Studies in Physics regarding the eligibility of M.Sc., (Resource Development Technology) degree holders to teach Physics at B.Sc., Degree level, approved their decision holding such post-graduate degree holders as eligible to teach B.Sc., (Physics) subject, provided they have passed B.Sc./B.Sc. (Honors) Degree with Physics and Mathematics as two of the three optional subjects of study. In view of this decision of the Andhra University, the State Government points out that the appointment of the 5th respondent cannot be doubted on the grounds of eligibility. The State Government tried to justify his appointment on the ground that the selection of the candidates has been confined to the inter se merit amongst them and hence the most meritorious candidate alone having been selected no exception need to be drawn thereto. It will be further relevant to point out that an additional counter affidavit has been filed after the writ petitioners in the above matter have moved the WPMP No. 21636 of 2007. It is pointed out that some of the Lecturers who have been admitted to grant-in-aid in private degree colleges have all been required to be accommodated in various other institutions, as there was shortfall of adequate workload in such institutions where their appointments have been made initially. Since all such teachers have all been admitted to grant in aid, it was required by the State Government to utilize their service elsewhere. Otherwise, the State Government would be paying them without availability of work load for such teachers. In these set of circumstances, the deployment of grant-in-aid admitted teachers elsewhere is the effective answer and therefore the policy decision of the State not to fill up all the existing vacant posts in various colleges cannot be faulted at all. It is further pointed out that nearly 2972 vacant posts in various aided institutions have not been filled in only for purposes of effective utilization of the existing manpower. This apart, it has been pointed out that the relaxations, which have been specially granted in favour of couple of teachers by the State Government, pointed out by the petitioners cannot form a proper basis for drawing any comparisons. It is stated that the exercise indulged in by the State Government in that regard is clearly incorrect and unjust and therefore it cannot be insisted that a similar mistake should be repeated even in the case of the writ petitioners herein. It is further pointed out that the case of the 2nd petitioner was considered for regularization, as review of the grant-in-aid policy of the State Government is taken up. It is further pointed out that the initial engagement of the service of the 2nd petitioner in Mrs. AVN College was against an unaided temporary post and hence he is not entitled to claim absorption against any aided vacancy. As a measure of policy, the State Government has not been allowing regularization of services of the teachers working against unaided vacancies against aided posts/vacancies. The college management as well as the contesting 5th respondent have also filed their respective counter affidavits. The burden of the song of these respondents is almost identical as that of the State Government. The principal question that falls for consideration in this case is whether the action of the respondents 1 to 3 is correct in not regularizing the services of the 2nd petitioner herein as a Lecturer in Physics at all. As is noted supra, during the pendency of the above writ petition, the services of the 1st petitioner have been regularized as a Lecturer in Physics though it is with effect from a subsequent date to that of the 5th respondent. The question relating to the eligibility of the the 5th respondent for appointment has become an issue of academic debate insofar as the 1st petitioner is concerned. While at the same time, the claims of the 2nd petitioner have been considered by the State government but he has not been allowed or permitted to be regularized for three specific reasons (i) he has been initially engaged against an unaided vacancy available in Mrs. AVN College, Visakhapatnam (ii) He did compete along with the 5th respondent at the selections, but it is the 5th respondent who has been selected because of his superior merit. (iii) At the time when the issue of regularization of his services has been considered, the 2nd respondent is not on the rolls of staff in service of the said college. Further, the State Government as a measure of policy has not been authorizing or allowing the posts of lecturers in aided institutions to be filled in as the State has undertaken a review of the existing grant- in-aid policy. It is specifically asserted by the State Government that several teachers who have already been admitted to grant-in-aid, had to be redeployed or adjusted against aided vacancies in various other institutions because of a drastic fall of the teaching work load. If an aided teacher is redeployed, the State Government would not be requiring to pay for the services of an additional teacher. The State Government is therefore entitled to secure optimum utilization of the available human resources, for whom the grants-in-aid are being utilized. The fact remains that both the writ petitioners have been recruited to teach on part time basis in the college. It is further not in dispute that they faced selections along with the 5th respondent and there is a relative assessment of the merit of the candidates. Hence the same cannot be doubted or faulted. Insofar as the controversy relating to the qualifications possessed by the 5th respondent, the Andhra University has accepted the recommendations of its Board of Studies and it has declared such candidates who possessed M.Sc. (Resource Development Technology) to be eligible to teach Physics subject for B.Sc., students, provided they have studied B.Sc., Degree with Physics and Mathematics as two of the three subjects of optional study. This policy decision of the Andhra University is not liable to be described in any manner as either arbitrary or illegal. Until and unless the same is held as bad in law, by any competent court, the question of considering the 5th respondent as otherwise ineligible to seek appointment as Lecturer in Physics does not arise. Further, in academic matters and in matters of deciding the equivalence of academic qualifications or titles, it is the Universities, the expert bodies, enjoy certain amount of freedom and courts, would seldom enter upon such territories. The policy of the State not to permit vacant posts in the aided sector for purposes of redeploying the existing manpower cannot be faulted at all. It is for the State Government, which has been paying for the salary and allowances of teachers employed in the private sector by admitting them to grant-in-aid, to effectively utilize their services. One can only hope that the State Government will finalise the entire exercise in this regard at the earliest so that the vacant posts in degree colleges can be filled up at the earliest. As at present advised, it is not possible to find fault with the State Government in any manner. Admittedly, the 5th respondent is found to be superior in merit and hence his selection and the consequential appointment cannot be faulted. The 2nd petitioner had faced the same selection committee. Hence, he cannot draw any comparison with the 5th respondent in that regard. The State Government also cannot be compelled to repeat the same error which they have committed in some other cases particularly when in the additional counter affidavit it has been asserted that there is no valid basis for such orders passed by the State Government granting special relaxation in case of two of the teachers, which is sought to be made the basis for the claim and comparison by the writ petitioner. As and when the State Government takes a final decision with regard to redeployment of the surplus teachers and if a vacancy in the cadre of Lecturer in Physics, is still available in Mrs. AVN College, Visakhapatnam, I am sure, appropriate consideration would be shown to the cause of the 2nd petitioner, taking into account the fact that he rendered service in that institution. I do not find any merit in this writ petition and it deserves to be dismissed. It is accordingly dismissed. No costs. ----------------------------------------- knk NOOTY RAMAMOHNA RAO,J Dt : 18.12.2009