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2023 DIGILAW 305 (AP)

U. Durga Devi v. District Educational Officer

2023-02-03

K.MANMADHA RAO

body2023
ORDER : This writ petition is filed under Article 226 of the Constitution of India for the following relief:- “…to call for the records relating to the vide Proc.Rc. No.7795-A1/2016-1, dated 4.10.2016 issued by the 1st respondent, as illegal, arbitrary, violation of Articles 14 and 21 of the Constitution of India despite the fact that there is no fault on the part of the applicant and consequently seeking directions to continue her as SGT in service with continuity of service with all consequential benefits and pass such other order or orders…….” 2. Brief facts of the case are that 3rd respondent has issued DSC-2014 Notification for filling up of various categories of Teacher posts. Out of 746 posts, OC(G), OC(W), SC (General) and SC (Women) were distributed as 151, 84, 52 and 26 respectively. The petitioner herein belongs to SC Community. She was allowed to participate in selection process pursuant to the said Notification through HT No.14499010402109 to the post of SGT. Thereafter, the respondents published the merit list which shows that the petitioner secured 103.16 marks and assigned District Rank 1006 under SC category. Accordingly, she was called for certificates verification along with others and she was issued appointment orders vide proceedings dated 31.05.2016 and posted at DEO Pool without giving any particular place of posting. Later, she was temporarily adjusted at MPPS, Bhagavanpuram, vide proceedings, dated 15.06.2016. Accordingly she joined duty and discharging her duties without any complaints whatsoever from any corner. While the matter stood thus, 1st respondent issued the impugned order dated 04.10.2016 terminating the petitioner from service and it was made in terms of the directions of 3rd respondent and also in terms of the order in O.A.No.2667 of 2016 passed by the A.P. Administrative Tribunal. It is further stated that 1st respondent before implementing the instructions of 3rd respondent, will have to re-cast the selections made in SC category from Open to Reservations, the vacancy particulars mentioned at para-6(b) and found that the petitioner’s appointment was mistaken and her services can be terminated. But, simply issuing a show cause notice and terminating her from service through impugned order, is highly illegal and arbitrary. Hence, the present writ petition has been filed. 3. But, simply issuing a show cause notice and terminating her from service through impugned order, is highly illegal and arbitrary. Hence, the present writ petition has been filed. 3. The counter affidavit has been filed by the respondents denying all the allegations made in the petition and inter alia contended that one Sri T. Ananda Sekhar belongs to SC category and local candidate of E.G. District appeared for TET-cum-TRT-2014 examination for the post of SGT (Telugu) and secured marks 114.6 and got 437 rank and he was provisionally selected for the said post under SC (General). The petitioner herein appeared for verification of original certificates and submitted her certificates. On verification of certificates, it is identified that the TET-2011 weightage was included in the marks which was secured in TET-cum-TRT-2014 and found that the candidate passed Paper-I of TET-2011 without qualification of the D.Ed., which is required for the post of SGT even the candidate not joined in the D.Ed. Course at the time of TET-2011. Thereafter, the Commissioner of School Education, A.P., Hyderabad issued clarification on 09.03.2016 and 28.03.2016 that “the candidate passed the TET examination before acquiring the D.Ed., examination. Hence, he is not eligible for TET cum-TRT-2014” and with regard to the above said T.Ananda Sekhar, his candidature may be rejected by issuing a detailed speaking order to the candidate with the approval of the DSC-2014. In view of the rejection order, the said Anand Sekhar has preferred O.A. No.2667 of 2016 before the A.P. Administrative Tribunal seeking to consider his case. The above prayer was also submitted to the Commissioner of School Education, A.P. and requested for clarification on 01.09.2016. Accordingly, the Commissioner, after re-examining the matter, issued instructions vide proc.Rc.No.88/TRC-1/2016 dated 14.09.2016 that “in such an event by issuing notice, following the procedure, the last selected candidate, appointed against the SC category may be terminated.” In view of the above instructions, as per final selection list, the last selected candidate in SC General category is with 108 marks and 779 rank namely Pall Nagamani had to be removed from SC General category and she had to be accommodated in SC Women Category. Hence, the last selected candidate in SC Women category, namely Undru Durga Devi, i.e., the petitioner herein with marks 103.16 and rank 1006 (working in DEO Pool) had to be removed from the selection list, as she was the less meritorious candidates in the selection under SC women category. In view of the above, a show cause notice was issued to the petitioner calling for explanation. But she has not yet submitted her explanation. Hence, the DEO, E.G District concluded that non-submission of her explanation or any representation, treated as she agreed with the content of the notice. Hence the termination orders were issued. 4. Heard Sri P. L. Narasimha Rao, learned counsel appearing for the petitioner and learned Government Pleader for Services-III appearing for the respondents. 5. During hearing, learned counsel for the petitioner, while reiterating the contents made in the petition, mainly contended that the respondents have not stated in the petitioner’s appointment order about her appointment whether it was made against any roster point either in OC General or OC (Women) or SC (General) or SC (Women) except showing her as surplus teacher for want of vacancy. Therefore, unless she is identified that her adjustment in a particular category against particular roster point in any one of the above four mentioned parts, her appointment cannot be considered as erroneous or excess. He further contended that the merit list candidates approximately from Rank No.1 to Rank No.1006 total SC candidates were shown as qualified is 112, out of which 57 Male and 35 Female and one is Non-local. As per the vacancy position, 151 posts of SGTs for General were notified. Notified vacancies under SC are 78. So, 112-78=34 candidates found to be excess wherein the petitioner is computed. He further contended that if the list of selected SC candidates is recasted, then how many SCs were accommodated against Open and local will come into truth and how many candidates relinquished their appointment as SGTs may be on the ground of selection of higher posts or other reasons and these candidates have to be removed from the calculation and determine the existing individuals and have to take a decision whether applicant comes under excess or not. But no evidence was shown on record either in show cause notice dated 24.09.2016 or in the impugned order dated 04.10.2016 that the respondents have exercised in the above manner and found that the petitioner’s selection is erroneous and excess. Unless the above exercise is being done, the petitioner’s appointment cannot be considered as improper. 6. Per contra, learned Government Pleader while reiterating the contents made in the counter, denying all the allegations made in the petition and contended that it is not a case of the petitioner that a less meritorious candidate selected ignoring the candidature of Sri T.Ananda Sekhar. Admittedly the petitioner got only 103.16 marks and whereas the last selected/adjusted candidate i.e., Palli Nagamani got 108 marks with 779 rank. As such, after adjustment of the appointment, in pursuance of order of O.A No.2667 of 2016 the petitioner is not within the zone of consideration for appointment, as such, the petitioner has rightly terminated. He also contended that the petitioner has failed to submit any explanation for the show cause notice dated 24.09.2016, as such, by following the process of law, the respondents have rightly issued the impugned order dated 04.10.2016, which is self-explanatory the factual position and reasoning for the removal of the petitioner. 7. It is an admitted fact that the petitioner was allowed to participate in the DSC-2014 selection process pursuant to the Notification which was issued for filling up of various categories of Teacher posts, secured 103.16 marks and assigned District Rank 1006 under SC category. Later, the petitioner was called for certificates verification and she was issued appointment orders vide proceedings dated 31.05.2016 and posted at DWO Pool without giving any particular place. Later, she was temporarily adjusted at MPPS, Bhaganvanpuram vide order dated 15.06.2016. It is to be noted that after due selection process is completed, the petitioner has been appointed and worked almost for six months, thereafter the respondents have issued the impugned proceedings without any fault on the part of the petitioner. When the respondents themselves selected the petitioner by conducting due selection process and she has worked for almost six months, the action of the respondents in terminating her services without any fault on her part, is wholly unjustified. 8. When the respondents themselves selected the petitioner by conducting due selection process and she has worked for almost six months, the action of the respondents in terminating her services without any fault on her part, is wholly unjustified. 8. A perusal of the Commissioner’s proceedings dated 14.06.2016, wherein it has been informed that as to how the persons with less rank than the petitioner in O.A.No.2667 of 2016 were selected and the petitioner was not selected and in such an event by issuing notice, following the procedure, the last selected candidate, appointed against the SC category may be terminated. Moreover, the 1st respondent before implementing the above instructions of the 3rd respondent, will have to re-caste the selections made in SC category from Open to Reservations, the vacancy particulars mentioned at para-6(b) and found that the petitioner’s appointment was mistaken and her services can be terminated. But simply issued a show cause notice and removed the petitioner from service through impugned order is highly illegal and arbitrary. 9. It is pertinent to mention here that the selection and appointment on post in the State have to conform to the fundamental rights guaranteed to the citizens under Articles 14 and 16. It is stated that “the selection and appointment on post borne on the State establishment provides an opportunity to citizens of public employment. The personnel who man the civil posts in State apart from carrying out objectives and policies of State also serve as source of sustenance for their families. 10. On perusing the entire material available on record, this Court is of the opinion that, if the list of selected SC candidates is re-casted, then it will come into truth that how many SCs were accommodated against Open and Local and whatever the process could be exercised by the respondents regarding the selection process on what ground they have removed the petitioner from service has not been properly explained. Moreover, no evidence was shown on record either in the show cause notice dated 24.09.2016 or in the present impugned order dated 04.10.2016 and also they have not produced any material to show that they have exercised in the correct procedure and found that the petitioner’s selection is erroneous. It is a case where the principle of estoppel comes into picture and the petitioner is entitled to the said rule. It is a case where the principle of estoppel comes into picture and the petitioner is entitled to the said rule. Viewed from any angle, the action of the respondents in terminating the petitioner from service on the ground of last selected candidate is highly illegal. 11. In a case of Potluri Anjali, D/o Hanumantha Rao v/s. State of Andhra Pradesh, 2022 LawSuit(AP) 80, wherein, it was held that, in case, no vacancy is available in the cadre, respondents are directed to create one supernumerary post. However, the petitioner is not entitled to claim monetary benefit, as she was not appointed to the post on the principle of NO WORK – NO PAY.” 12. Therefore, in view of the facts and circumstances of the case and on considering the submissions made by learned counsel for the petitioner, the impugned order in Proc.Rc.No.7795-A1/2016-1, dated 04.10.2016, issued by the 1st respondent is set aside. Further, the concerned respondent authority is directed to appoint the petitioner in the same cadre i.e., as SGT and give appointment orders from the date on which she was appointed i.e., 31.05.2016 to the petitioner with all consequential benefits. In case, no vacancy is available in the cadre, the respondents are directed to create one supernumerary post. It is made clear that the petitioner is also entitled for benefit of notional seniority on par with others who were appointed in the said Notification stated supra in which the petitioner was appointed vide proceedings dated 31.05.2016. 13. Accordingly, the Writ Petition is allowed. There shall be no order as to costs. As a sequel, all the pending miscellaneous applications shall stand closed.