R. Vijaya Daniel v. State of Andhra Pradesh, Rep. by its Principal Secretary
2023-01-06
A.V.SESHA SAI, DUPPALA VENKATA RAMANA
body2023
DigiLaw.ai
ORDER : A.V. Sesha Sai, J. Since these two Letters Patent Appeals arise from a common order, and as the issues are the same, this Court deems it appropriate to hear and dispose of these cases by way of this common order. 2. Writ Appeal No.864 of 2021 arises from W.P.No.10253 of 2019 and W.A.No.873 of 2022 arises from W.P.No.10252 of 2019. 3. By way of the impugned common order, dated 08.10.2021, the learned single Judge dismissed the Writ Petitions. The said orders passed by the learned single Judge are under challenge in these Appeals, preferred under Clause 15 of the Letters Patent by the unsuccessful writ petitioners. 4. Heard Sri P.Gangaiah Naidu, learned Senior Counsel, representing Sri G.Elisha, learned counsel for the writ petitioners-appellants herein, and Sri K.V.Raghuveer, learned Government Pleader for Education, for the respondents, apart from perusing the entire material available on record. 5. Learned Senior Counsel for the appellants contends that the impugned common order passed by the learned single Judge is highly erroneous, contrary to law and is a result of non-consideration of the material available on record. It is further contended by the learned Senior Counsel that the reasons assigned by the learned single Judge in the impugned order are neither sustainable nor tenable in the eye of law; that the orders passed in similar Writ Petitions attained finality, as such, the learned single Judge grossly erred in permitting the respondents to canvass the issues which were already gone into in the earlier Writ Petitions filed by the similarly situated individuals. 6. On the contrary, Sri K.V.Raghuveer, learned Government Pleader for Education, strongly supporting the impugned orders, contends that there is no error nor there exists any infirmity in the impugned orders passed by the learned single Judge, as such, the said orders do not warrant any interference of this Court under Clause 15 of the Letters Patent; that the respondents filed counter-affidavit, raising a number of objections which disentitle the writ petitioners from claiming the relief sought in the Writ Petitions. It is further contended that the contention of the learned Senior Counsel appearing for the writ appellants that it would not be open for the respondents to deny the claim of the writ petitioners, having regard to the earlier orders, is neither sustainable nor tenable. In support of his contentions, learned Government Pleader places reliance on the following judgments: 1.
It is further contended that the contention of the learned Senior Counsel appearing for the writ appellants that it would not be open for the respondents to deny the claim of the writ petitioners, having regard to the earlier orders, is neither sustainable nor tenable. In support of his contentions, learned Government Pleader places reliance on the following judgments: 1. (2009) 5 SCC 65 2. (2011) 3 SCC 436 7. In the above background, now the issues that emerge for consideration and adjudication are as infra: 1) Whether the order passed by the learned single Judge, having regard to the facts and circumstances of the case, is sustainable and tenable? 2) Whether the writ petitioners-appellants herein are entitled for any relief from this Court? 8. Appellants herein filed the aforementioned Writ Petitions, assailing the orders passed by the Commissioner and Director of Collegiate Education, dated 30.01.2015 and 20.11.2015, declining to appoint the writ petitioners-appellants herein as Lecturers in Mathematics and English against the aided vacancies. After receipt of the notices, respondents in the Writ Petitions contested the matters by filing counter-affidavits. Eventually, as stated supra, the Writ Petitions came to be dismissed by the learned single Judge vide the orders impugned in the present Writ Appeals. 9. The essence of the case of the appellants, as advocated by the learned Senior Counsel, is that the learned single Judge ought not to have permitted the respondent authorities to re-agitate all the issues which attained finality in a number of earlier Writ Petitions. 10. On the contrary, the sum and substance of the case of the respondents is that the issues, which were raised and discussed in the present Writ Petitions, were not at all raised and considered in the earlier Writ Petitions. In order to consider and adjudicate the issues raised in these Writ Appeals, it would be highly essential and apposite to refer to various earlier orders of this Court and the Hon’ble Apex Court. 11. Similarly situated Lecturer in Botany, in the same respondent-college, filed W.P.No.20036 of 2003 for a direction to admit her to grant-in-aid vacancy with effect from 01.02.2001 i.e., the date on which the aided vacancy arose. A copy of the said order passed by the learned single Judge of the composite High Court of A.P. is placed on record along with the present Writ Appeals.
A copy of the said order passed by the learned single Judge of the composite High Court of A.P. is placed on record along with the present Writ Appeals. A perusal of the said order, in clear and unequivocal terms, reveals that same objections were raised by the authorities in the said Writ Petition also. However, the learned single Judge of the composite High Court of A.P., turned down the objections of the authorities and allowed the Writ Petition vide order, dated 30.10.2013. In this context, it may be appropriate to extract certain paragraphs of the said judgment, which read as under: “The respondents contended that the petitioner cannot be absorbed in the aided vacancy, on various grounds. They raised a contention in the counter that permission from competent authority before making appointment to the unaided posts was not obtained by the 4th respondent and that the very appointment consequently is bad. The respondent further contended that the petitioner is a lecturer in Microbiology while the vacancy, which arose in Botany and that the petitioner consequently is not eligible for absorption as lecturer in Botany in the aided vacancy. The respondents urged that there was no Government Nominee in the Selection Committee and that the selection of the petitioner into an unaided vacancy consequently is not sustainable. Finally they pleaded that there was a ban on the recruitment so much so the request of the 4th respondent to absorb the petitioner in the aided vacancy is not permissible. It is made clear that the petitioner is a Post Graduate in Botany and also did Ph.D. The question is whether the petitioner is eligible to teach Microbiology and whether petitioner can be absorbed as a lecturer in Botany. Botany is the basic course that the petitioner has undergone. Consequently, the defence of the respondent that the petitioner was initially selected as Microbiology and cannot be absorbed as a lecturer in Botany cannot be sustained. Admittedly, Government Nominee did not participate in the Selection Process, which is evident from the minutes of the Appointment Committee dated 12.8.1995. In W.P.No.9441 of 2005 dated 26.2.2010, this question was considered by a learned Single Judge of this Court.
Admittedly, Government Nominee did not participate in the Selection Process, which is evident from the minutes of the Appointment Committee dated 12.8.1995. In W.P.No.9441 of 2005 dated 26.2.2010, this question was considered by a learned Single Judge of this Court. Inter alia, it was pointed out that for Minority Educational Institutions, candidates can be selected on the basis of Selection Committee, wherein the Government Nominee has not participated in view of G.O.Ms.No.23, Minorities Welfare (M&R) Department dated 10.3.1999. The 4th respondent is a Minority Educational Institution. In view of the observations in W.P.No.9441 of 2005, it is clear that Minority Educational Institutions can proceed with the selection of unaided posts constituting a Committee without including a Government Nominee in the Selection Committee. Consequently the contention of the respondents that there was no Government nominee in the Selection Committee and that the very selection of the petitioner in the unaided post is invalid is not sustainable. It is also contended by the Government that permission was not obtained from the competent authority prior to filling up the vacancies. Once again, so far as minority institutions are concerned, the very permission contemplated by G.O.Ms.No.12 dated 10.1.1992 is in respect of aided posts and not in respect of unaided posts. Further, G.O.Ms.No.23 already referred to grants exemptions in respect of Minority Educational Institutions. Consequently, the contention of the respondents that prior permission of the competent authority was not obtained before filling up the unaided posts and that such a candidate cannot be absorbed in an aided vacancy is not sustainable. The further ground urged by the Government is that there is a ban in respect of recruitment. The leaned Senior Counsel for the petitioner submitted that despite ban, several lecturers were absorbed into aided vacancies after the imposition of ban. The ban was imposed on 17.12.1999. However, the remaining lecturers selected along with the petitioner had been absorbed into aided vacancies. As can be seen from the orders dated 23.12.2000 issued by the second respondent, Smt.N.Vidyullatha Devi was absorbed as lecturer in Zoology into the aided vacancy. She was selected along with the petitioner. Proceedings dated 29.12.2000 issued by the second respondent show that 4 other persons, who were initially selected along with the petitioner were subsequently absorbed into aided vacancies.
As can be seen from the orders dated 23.12.2000 issued by the second respondent, Smt.N.Vidyullatha Devi was absorbed as lecturer in Zoology into the aided vacancy. She was selected along with the petitioner. Proceedings dated 29.12.2000 issued by the second respondent show that 4 other persons, who were initially selected along with the petitioner were subsequently absorbed into aided vacancies. The respondents cannot adopt pick and choose method accepting the case of some of the unaided lecturers for being absorbed into the aided vacancy and deny the same benefit to the petitioner on the ground of ban. Consequently, the defence that in view of ban, the petitioner cannot be absorbed into the aided vacancy is not sustainable. Viewed by any angle, the refusal of the respondents to absorb the petitioner into an aided vacancy in Botany is not sustainable. Consequently, the respondents 1 to 3 are directed to accord permission to the 4th respondent to absorb the petitioner in the aided vacancy of the lecturer in Botany with effect from 1.2.2001 granting such permission within four weeks from the date of receipt of a copy of this order. Accordingly, the Writ Petition is allowed. No costs. Miscellaneous petitions, pending if any in this Writ Petition shall stand closed”. 12. It is also not in controversy that, by way of G.O.Ms.No.3, Higher Education (CE) Department, dated 10.01.2018, the State Government implemented the above mentioned order. 13. Earlier, similarly situated Lecturers filed W.P.No.9441 of 2005 and in the said Writ Petition also same objections were taken by the respondent authorities, but the learned single Judge of the composite High Court of A.P. allowed the Writ Petition vide order, dated 26.02.2010, turning down the said objections of the authorities. It is also significant to note that, assailing the aforesaid order, the respondent authorities carried the matter by way of Intra-Court Appeal vide W.A.No.851 of 2010 and the Division Bench of the composite High Court of A.P. vide order, dated 15.02.2012, dismissed the said Writ Appeal. 14. As against the said order passed by the Division Bench in W.A.No.851 of 2010, Special Leave to Appeal vide C.C.No.19308 of 2012 was filed by the Department and the Hon’ble Apex Court vide order, dated 27.09.2013, dismissed the said Special Leave to Appeal. Operative portion of the said order reads as follows: “We have heard learned counsel for the parties and carefully perused the record.
Operative portion of the said order reads as follows: “We have heard learned counsel for the parties and carefully perused the record. We are in complete agreement with the learned single Judge and the Division Bench of the High Court that the reasons put forward by the petitioners for refusing to consider the case of respondent No.1 for grant of approval were legally unsustainable. We also do not find any error in the direction given by the learned single Judge to the petitioners to reconsider the case of respondent No.1 for regularisation of her service and for absorption against the aided post of Junior Lecturer (Maths) in the service of respondent No.2 with effect from 09.12.1994 and to give her all consequential benefits. The learned single Judge gave these directions because in the case of Mohd.Ayazuddin, the department had accorded approval for his absorption despite the fact that he was appointed in the same manner in which respondent No.1 had been appointed”. 15. Subsequently, the State Government vide G.O.Ms.No.16, Higher Education (I.E.II) Department, dated 12.03.2012, implemented the order passed by the learned single Judge of the composite High Court of A.P., in W.P.No.9441 of 2005, dated 26.02.2010, as confirmed by the Hon’ble Apex Court. 16. It is also significant to note that vide common order, dated 20.12.2018, W.P.No.7789 of 2012 & batch was allowed, while referring to similar orders of absorption of identically placed individuals. Paragraph Nos.20, 21 and 22 of the said common order read as follows: “20. As rightly contended by the counsel for petitioners, when the State itself had absorbed similarly situated persons like the Writ Petitioners into grant in aid posts on its own and also pursuant to orders passed by this Court, it cannot be contended that petitioners have to be treated on a different footing and they should be denied consideration for absorption in the grant in aid vacancies in the respective subjects existing in the private managements where the respective petitioners are working. 21. Therefore, all these Writ Petitions are allowed. The orders rejecting absorption in aided posts passed by the Commissioner and Directorate of Collegiate Education, Andhra Pradesh in the case of the petitioners are set aside; and the State of Andhra Pradesh and the Commissioner of Collegiate Education are directed to absorb the petitioners in the aided posts of Lecturers in the respective private Managements with all consequential benefits. 22.
22. Accordingly, the Writ Petitions are allowed as above. No order as to costs” 17. As against the above orders, W.A.No.263 of 2019 & batch came to be preferred and a Division Bench vide order, dated 31.01.2020, dismissed the said Writ Appeals. The said orders passed by the Division Bench were carried to the Hon’ble Apex Court by way of S.L.P.(C)No.13575/2020 and the Hon’ble Apex Court vide order, dated 25.11.2020, dismissed the said petition. It is also not in controversy that the Review Petition filed vide Diary No.31/2021 in the aforementioned S.L.P(C).No.13775/2020 also came to be dismissed by the Hon’ble Apex Court vide order, dated 03.02.2021. A copy of the said Review Petition filed before the Hon’ble Apex Court is placed on record along with the present Writ Appeals as a material paper. In this context, it would be highly essential and appropriate to extract Grounds R, S, T & W of the Review Petition, which read as under: “R. BECAUSE the Hon’ble High Court erred in nothing that there is not law existing conferring such benefits on the employees of Private Educational Institutions. In fact, as early as on 03.11.1999, the Government issued a G.O.283 [Page 121 of SLP Paper-book], whereby all previous G.O.s, which provided a right of regularization / absorption to such employees were withdrawn once and for all. Consequently, no law of regulation exists that confers such a right upon such Lecturers. S. BECAUSE the Hon’ble High Court erred in not nothing that, Andhra Pradesh Regulation of Appointments to Public Services and Rationalisation Of Staff Pattern And Pay Structure Act, 1994 categorically forbids such regularization. The said provision reads as under: “7.
Consequently, no law of regulation exists that confers such a right upon such Lecturers. S. BECAUSE the Hon’ble High Court erred in not nothing that, Andhra Pradesh Regulation of Appointments to Public Services and Rationalisation Of Staff Pattern And Pay Structure Act, 1994 categorically forbids such regularization. The said provision reads as under: “7. No person who is daily wage employee and no person who is appointed on a temporary basis under section 3 and is continuing as such at the commencement of this Act shall have or shall be deemed ever to have a right to claim for regularization of services on any ground whatsoever and the services of such person shall be liable to be terminated at any time without any notice and without assigning any reasons.” The aforesaid Act is applicable to all services defined as ‘Public Services’ under Section 2 (vi) (e) of the Act which reads as under: “(e) any other body established by the State Government or by a Society registered under any law relating to the registration or societies for the time being in force, and receiving funds from the State Government either fully or partly for its maintenance or any educational institution whether registered or not but receiving aid from the Government.” T. It is thus clear that there is a categorical bar to regularization. This aspect has not been considered by the Hon’ble Court. W. The Hon’ble High Court erred in not appreciating that none of the previous judgments relied upon by the Hon’ble High Court have referred to (much less considered) the effect of G.O.Ms.No.283 dated 03.11.1999 [Page 121 of SLP Paper-book] whereby all previous Government’s Orders prescribing for regularization of Lecturers to Aided Posts were rescinded. As on date, there is no law, whatsoever, that confers any right upon the Lecturers, to claim regularization/absorption”. 18. The fact remains that the respondents categorically took all the objections in the earlier Writ Petitions, however, as mentioned supra, the Writ Petitions were allowed. In the present cases also the same grounds, which were taken in the Review Application filed before the Hon’ble Apex Court, as mentioned supra, are sought to be pressed into service by the respondents. It is not at all the case of the respondents that, in respect of the individuals whose services were already regularised by the Government, there were no such objections. 19.
It is not at all the case of the respondents that, in respect of the individuals whose services were already regularised by the Government, there were no such objections. 19. Request for repeated adjudication of the issues, pertaining to similarly situated persons on the ground that there are new grounds for denying the relief is not permissible. In the considered opinion of this Court, the same would create two different sub-Clauses in one Class, which ultimately offends Article 14 of the Constitution of India. As mentioned supra, the objections now sought to be pressed into service were also available in the earlier cases and also in the cases where the Government on its own extended the benefit to the similarly situated persons. No plausible explanation is forthcoming as to why the present objections were overlooked and did not come in the way of the respondents, while considering the similarly situated persons. In the considered view of this Court, if the contentions of the respondents are permitted and accepted, there cannot be finality for any issue and it may continue as a never ending issue which would eventually frustrate and defeat the very object of the adjudication and the concept of finality. The contention of the learned Government Pleader that, in the event of considering the request of the writ petitioners-appellants herein positively, the same would amount to perpetuating illegality, in the considered opinion of this Court, cannot stand for judicial scrutiny, having regard to the earlier orders of this Court and the orders of the Hon’ble Apex Court, including the order in the Review Application (referred to supra), filed by the authorities, raising the same grounds. 20. Having regard to the factual situation and the orders passed by the Hon’ble Apex Court in the Review Application, referred to supra, the judgements cited by the learned Government Pleader would not render any assistance to the case of the respondent authorities. 21. For the aforesaid reasons, Writ Appeals are allowed, setting aside the order, dated 08.10.2021, passed by the learned single Judge in W.P.Nos.10252 and 10253 of 2019 and, consequently, Writ Petitions are allowed as prayed for. There shall be no order as to costs. Miscellaneous petitions, if any, pending in these cases, shall stand closed.