Research › Search › Judgment

Andhra High Court · body

2020 DIGILAW 61 (AP)

Government of A. P. v. Kondeti Pandu Ranga Rao

2020-01-24

AKULA VENKATA SESHA SAI, R.RAGHUNANDAN RAO

body2020
ORDER : Akula Venkata Sesha Sai, J. 1. Since these two Writ Petitions raise common questions of law and as Tribunal disposed of the Original Applications by way of common order, this Court deems it appropriate to dispose of these two Writ Petitions by way of this Common Order. 2. In these Writ Petitions, challenge is to the common order passed by the Andhra Pradesh Administrative Tribunal, Hyderabad (hereinafter called as 'the Tribunal') in O.A. Nos. 7688 of 2011 and 7995 of 2011, dated 27.04.2012, The respondents, in W.P. Nos. 34248 of 2012 and 34399 of 2012, are working as Senior Assistant and I.C. Assistant respectively in the Department of Irrigation. After entering into the service, the respondents herein/applicants prosecuted B.Tech Course through the Institute of Advanced Studies in Education, a deemed University, Gandhi Vidya Mandir, Sardarshahr, Rajasthan and Janardan Rai Nagar Rajasthan Vidyapeeth University, Udaipur, Rajasthan respectively. After acquiring the said qualification, they submitted representations to the authorities, requesting for their appointment as Assistant Executive Engineers. When the authorities failed to respond to the said representations, the respondents herein/applicants approached the Tribunal, by way of filing O.A. Nos. 7688 of 2011 and 7995 of 2011, questioning the action of the authorities in not appointing them to the posts of Assistant Executive Engineer. The said Original Applications were contested by way of filing counter-affidavits. The Tribunal, by way of Common Order, dated 27.04.2012, allowed the said Original Applications directing the authorities to treat the degrees obtained by the respondents herein/applicants as valid and further directed to consider the case of the applicants for appointment as Assistant Executive Engineers having regard to the relaxations granted to other persons including one Sri C. Vasudeva Reddy. In these Writ Petitions, the respondents in the said Original Applications are assailing the validity and legal sustainability of the Orders passed by the Tribunal. 3. Heard Sri K. Bheemarao, learned Government Pleader for Services for the petitioners in both the Writ Petitions and Sri T. Rajendra Prasad, learned counsel for the respondents in both the Writ Petitions, apart from perusing the material available on record. 4. 3. Heard Sri K. Bheemarao, learned Government Pleader for Services for the petitioners in both the Writ Petitions and Sri T. Rajendra Prasad, learned counsel for the respondents in both the Writ Petitions, apart from perusing the material available on record. 4. It is contended by the learned Government Pleader that the posts being held by the respondents herein are not the feeder categories for the posts of Assistant Executive Engineer as per Rule 3 of the Andhra Pradesh Irrigation Engineer Service Rules, 2010 (hereinafter called as 'the Service Rules), as notified vide G.O. Ms. No. 32, Irrigation & C.A.D.(Services-IX) Department, dated 12.04.2010. It is also the submission of the learned Government Pleader that the degrees obtained from the deemed universities by the respondents herein are not valid as per Memo No. 1207/Ser.I(1)/2008, issued by the State Government on 05.06.2009. It is also the submission of the learned Government Pleader that the said Memo issued by the State Government was never under challenge before the Tribunal. In support of his submissions and contentions, learned (Government Pleader placed reliance on the Judgment of the Hon'ble Apex Court in the case of Orissa Lift Irrigation Corporation Limited v. Rabi Sankar Patro (2018) 1 SCC 468 . 5. On the contrary, it is contended strenuously by Sri T. Rajendra Prasad, learned counsel for the respondents herein that the action of the authorities in not considering the respondents for promotion, is a patent discrimination and is total violation of the Fundamental Right guaranteed to the respondents under Article 14 of the Constitution of India. In elaboration, it is further contended by the learned counsel that the similarly situated individuals, viz., Sri C. Vasudeva Reddy, Sri S.K. Sai Krishna, Sri Abdul Saleem, Sri P. Srinivasarao and Sri Abdul Mastan Baig, were appointed as Assistant Executive Engineers by duly relaxing Rule 3 of the Service Rules. It is also the submission of the learned counsel that as per the directions of the Hon'ble Apex Court in the case of Orissa Lift Irrigation Corporation Limited v. Rabi Sankar Patro, (2018) 1 SCC 468 (supra), the respondents herein got through the examination, as such, their cases cannot be rejected. During the course of hearing, certificates to the said effect are also placed on record by the learned counsel. During the course of hearing, certificates to the said effect are also placed on record by the learned counsel. Learned Counsel takes the support of the Judgment of the Hon'ble Apex Court in the case of Osmania University Teachers Association v. State of Andhra Pradesh and another AIR 1987 SC 2034 . 6. In the above back drop, now the issue that emerges for consideration of this Court is: "Whether the common order passed by the Tribunal, which is impugned in the present Writ Petitions, is sustainable and tenable and whether the same warrants any interference of this Court under Article 226 of the Constitution of India?" 7. Admittedly, both the respondents are the employees belonging to Ministerial Service. The dispute in the present Writ Petitions relates to consideration of their cases to the posts of Assistant Executive Engineer. The post of Assistant Executive Engineer is governed by the Service Rules notified, vide G.O. Ms No. 32, Irrigation & C.A.D (Services IX) Department, dated 12.04.2010 and the said post falls under the category (6) of Class-A of Rule 2 of the Service Rules. Rule 3 of the Service Rules deals with 'Method of Appointment'. The method of appointment to the post of Assistant Executive Engineer, according to the Rule 3 of the Service Rules, is as follows: (i) By Direct Recruitment (ii) By appointment by transfer of Assistant Engineers and Assistant Technical Officer/Junior Technical Officer with reference to the combined seniority based on the date of appointment as Junior Technical Officer and Technical Assistant of Andhra Pradesh Engineering Subordinate Service Rules. (iii) By appointment by direct recruitment of in service Work Inspectors of all Grades (in-service candidates only) with reference to the combined seniority based on the date of appointment as Work Inspector Grade-IV. It is very much evident from a reading of the above said Rule that the posts, which the respondents are holding, do not fall under any one of the above categories, eligible for appointment as Assistant Executive Engineers. 8. The contention of the learned counsel for respondents, as mentioned supra, is that similarly situated employees were appointed as Assistant Executive Engineers, though they do not belong to the feeder categories. It is also his submission that in view of the relaxation given to one Sri C. Vasudevareddy, the State Government is required to relax the Rule and to extend the same benefit to the respondents also. It is also his submission that in view of the relaxation given to one Sri C. Vasudevareddy, the State Government is required to relax the Rule and to extend the same benefit to the respondents also. 9. Rule 31 of the Andhra Pradesh State and Subordinate Services Rules, 1996 deals with the 'Relaxation of Rules by the Governor' which reads as under: Notwithstanding anything contained in these rules or in the special rules, the Governor shall have the power to relax any rules contained in these rules or special rules, in favour of any person or class of persons, in relation to their application to any member of a service or to any person to be appointed to the service, class or category or a person or a class of persons, who have served in any, civil capacity in the Government of Andhra Pradesh in such manner as may appear to be just and equitable to him, where such relaxation is considered necessary in the public interest or where the application of such rule or rules is likely to cause undue hardship to the person or class of persons concerned. It is very much apparent from a reading of the above said Rule that the provisions of the said Rule can be pressed into service only in the public interest and only in order to alleviate undue-occasion. 10. The authorities, by way of filing counter in these cases, seek to justify their action in giving promotion to Sri C. Vasudevareddy by stating that he obtained gold medal in Engineering course, and having regard to the outstanding work done by him, and having regard to training underwent by him in Modernization of Irrigation Systems and Canal Operation conducted by the Food and Agriculture Organization (FAO) of United Nations Organization and presented about three international papers, his case was considered under Rule 31 of the 1996 Rules. The language employed in the Rule 31 of 1996 Rules makes it very much manifest that the power of relaxation needs to be exercised only in the public interest and for the purpose of removing the undue hardship to the person or class of persons concerned. In the instant case, the respondents are unsuccessful in pointing out the existence of any such contingencies in their case. 11. In the instant case, the respondents are unsuccessful in pointing out the existence of any such contingencies in their case. 11. In this context, it may also be appropriate to take note of the settled proposition of law that there cannot be any perpetuity of illegality even assuming that the same had taken place while dealing with other similarly situated employees, whose appointment orders are not in question before this Court. 12. Coming to the degrees obtained by the respondents from the universities referred to supra, the Hon'ble Apex Court, while dealing with the deemed universities and the validity of the certificates issued by them, in the case of Orissa Lift Irrigation Corporation Limited v. Rabi Sankar Patro (2018) 1 SCC 468 (supra), issued the following directions. 53. Accordingly we direct: I 1994 AICTE Regulations, do apply to Deemed to be Universities and the Deemed to be Universities in the present matter were not justified in introducing any new courses in Technical Education without the approval of AICTE. II Insofar as candidates enrolled during the Academic Sessions 2001-2005, in the present case the ex post facto approvals granted by UGC and their concerned authorities are set aside. III Consequent to aforesaid direction No. II, all the degrees in Engineering awarded by concerned Deemed to be Universities stand suspended. (2016) 7 SCC 353 - Paras 86 to 92, 108 to 111 (2016) 6 SCC 335 IV The AICTE shall devise the modalities to conduct an appropriate test/tests as indicated in Para 47 above. The option be given to the concerned students whose degrees stand suspended by 15.01.2018 to appear at the test/tests to be conducted in accordance with the directions in Para 47 above. Students be given not more than two chances to clear test/tests and if they do not successfully clear the test/tests within the stipulated time, their degrees shall stand cancelled and all the advantages shall stand withdrawn as stated in Paras 46 and 47 above. The entire expenditure for conducting the test/tests shall be recovered from the concerned Deemed to be Universities by 31.03.2018. V Those students who do not wish to exercise the option, shall be refunded entire money deposited by them towards tuition fee and other charges within one month of the exercise of such option. Needless to say their degrees shall stand cancelled and all advantages/benefits shall stand withdrawn as mentioned in Para 47. V Those students who do not wish to exercise the option, shall be refunded entire money deposited by them towards tuition fee and other charges within one month of the exercise of such option. Needless to say their degrees shall stand cancelled and all advantages/benefits shall stand withdrawn as mentioned in Para 47. VI If the students clear the test/tests within the stipulated time, all the advantages/, benefits shall be restored to them and their degrees will stand revived fully. VII As regards students who were admitted after the Academic Sessions 2001-2005, their degrees in Engineering awarded by the concerned Deemed to be Universities through distance education mode stand recalled and be treated as cancelled. All benefits secured by such candidates shall stand withdrawn as indicated in Para 48 above. However, the entire amount paid by such students to the concerned Deemed to be Universities towards tuition fees and other expenditure shall be returned by the concerned Deemed to be Universities by 31.05.2018, as indicated in Para 48. VIII By 31.05.2018 all the concerned Deemed to be Universities shall refund the sums indicated above in VII and an appropriate affidavit to that extent shall be filed with UGC within a week thereafter. IX We direct the CBI to carry out thorough investigation into the conduct of the concerned officials who dealt with the matters and went about the granting permissions against tire policy statement, as indicated in Para 49 above and into the conduct of institutions who abused their position to advance their commercial interest illegally. Appropriate steps can thereafter be taken after culmination of such investigation. X The UGC shall also consider whether the Deemed to be University status enjoyed by JRN, AAI, IASE and VMRF calls for any withdrawal and conduct an inquiry in that behalf by 30.06.2018 as indicated above. If the moneys, as directed above are not refunded to the concerned students that factor shall be taken into account while conducting such exercise. XI We restrain all Deemed to be Universities to carry on any courses in distance education mode from the Academic Session 2018-2019 onwards unless and until it is permissible to conduct such courses in distance education mode and specific permissions are granted by the concerned statutory/regulatory authorities in respect of each of those courses and unless the off-campus Centres/Study Centres are individually inspected and found adequate by the concerned Statutory Authorities. The approvals have to be course specific. XII The UGC is further directed to take appropriate steps and implement Section 23 of the UGC Act and restrain Deemed to be Universities from using the word 'University' within one month from today. XIII The Union of India may constitute a three members Committee comprising of eminent persons who have held high positions in the field of education, investigation, administration or law at national level within one month. The Committee may examine the issues indicated above and suggest a road map for strengthening and setting up of oversight and regulatory mechanism in the relevant field of higher education and allied issues within six months. The Committee may also suggest oversight mechanism to regulate the Deemed to be Universities. The Union of India may examine the said report and take such action as may be considered appropriate within one month thereafter and file an affidavit in this Court of the action taken on or before August 31, 2018. The matter shall be placed for consideration of this aspect on 11.09.2018. 13. According to the learned counsel for the respondents, strictly in accordance with direction No. 3 of the Hon'ble Supreme Court, the respondents got through the examinations within two years and the certificates to that effect are also placed on record by the learned counsel. Since the respondents admittedly do not fall under any one of the feeder categories under Rule 3 of the Service Rules for holding the posts of Assistant Executive Engineer, in the considered opinion of this Court, they cannot be permitted to plead equity with the other individuals, who were given promotions as Assistant Executive Engineers, even assuming that such appointments were irregular and contrary to Rules. The Judgment of the Hon'ble Supreme Court in the case of Osmania University Teachers Association v. State of Andhra Pradesh and another AIR 1987 SC 2034 (supra), in the facts and circumstances of the case, would not render any assistance to the case of the respondents. 14. In view of the above reasons, this Court has absolutely no scintilla of hesitation, nor any traces of doubt to hold that the common order passed by the Tribunal, which is impugned in the present Writ Petitions, cannot be sustained in the eye of law. 15. For the aforesaid reasons, both the Writ Petitions are allowed, setting aside the common order, dated. 15. For the aforesaid reasons, both the Writ Petitions are allowed, setting aside the common order, dated. 27.04.2012 passed by the Tribunal in O.A. Nos. 7995 of 2011 and 7688 of 2011. Consequently, O.A. Nos. 7995 of 2011 and 7688 of 2011 on the file of the Andhra Pradesh Administrative Tribunal, Hyderabad stand dismissed. There shall be no order as to costs of the Writ Petitions. Consequently, miscellaneous petitions, if any, in the Writ Petitions shall stand closed.