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2023 DIGILAW 520 (AP)

Ch. Padmakar v. Govt. OF A. P. , Higher Education

2023-03-10

M.GANGA RAO

body2023
ORDER : The petitioner filed this writ petition seeking writ of mandamus: (a) to direct the 1st respondent to pass appropriate orders in ratifying the proposal sent by the 2nd respondent in the matter of appointment of the petitioner as Physical Director; (b) to direct the respondents to pay the salary for the period functioned till such decision is taken by holding the action of the 1st respondent; and (c) by holding the action of the respondent Nos.1 to 3 in not paying the salary though similarly placed persons are being paid as bad, illegal, arbitrary, unconstitutional and violative of Constitution of India. 2. The petitioner claims that he belongs to Scheduled Caste community. He passed Masters Degree in Physical Education in the year 1995. The 3rd respondent college issued Advertisement dated 10.5.2002 calling for applications for the post of single and solitary post of Physical Director (Aided post) duly prescribing qualifications. The petitioner submitted his application in response to the advertisement as he is fully eligible and qualified to be appointed as Physical Director in the 3rd respondent College. He was selected by the duly constituted selection committee as per the procedure and the 3rd respondent college has given appointment order dated 16.7.2002 and he joined duty on 16.7.2002. The 3rd respondent submitted a letter to the 2nd respondent on 19.7.2002. The Board of Intermediate Education sought for some clarification from the Regional Inspection Officer about the selection process. In turn, the Regional Inspection Officer wrote back vide proceedings dated 23.4.2003 explaining that 4 out of 6 selection committee members attended and recommended for approval. The Intermediate Board approved his appointment through proceedings dated 05.06.2003. In view of approval by the 2nd respondent, the 3rd respondent sent proposal to the 2nd respondent to admit the petitioner in grant-in-aid and the same was accorded by the 2nd respondent with effect from 16.7.2002 from the date of joining in the college. Despite approval of the petitioner’s appointment by the Board and admitting grant-in-aid, he was not being paid salary. Several other Physical Directors and Librarians who are similarly situated to that of the petitioner were appointed by the different private aided colleges across the State even after appointment of the petitioner and all of them are getting salaries, whereas the petitioner is being denied payment of salaries, which is illegal and arbitrary. 3. Several other Physical Directors and Librarians who are similarly situated to that of the petitioner were appointed by the different private aided colleges across the State even after appointment of the petitioner and all of them are getting salaries, whereas the petitioner is being denied payment of salaries, which is illegal and arbitrary. 3. This Court, on 25.2.2008 while issuing rule nisi admitted the writ petition and granted the following interim order in WPMP.No.5021 of 2008: “There shall be an interim direction to the 2nd respondent to consider releasing the salary of the petitioner from 16.07.2002 till date, as per his eligibility, and pass appropriate orders, as per law, within a period of three weeks from the date of receipt of a copy of this order, and communicate the same to the petitioner.” 4. In pursuance of the same, by proceedings dated 13.4.2008 the 2nd respondent rejected the petitioners claim. The said order is also under challenge by way of amendment to the writ petition. 5. The 2nd respondent filed counter on his behalf and on behalf of the 1st respondent stating that Act 2 of 1994 has been enacted to regulate the appointments and prohibit irregular appointments in offices and establishments under the control of State Government, Local Authorities, Corporations and bodies established under law made by the State Legislature. Further, orders have been issued in G.O.Ms.No.275 Finance & Planning (FW:SMPC) Department dated 14.12.1995 stipulating that all departments and offices in the State Government should necessarily send requisitions to the Government in the Finance and Planning Department to fill every kind of post whether full time or part-time, contingent or any other category and after getting clearance from the government in Finance Department such post can be filled and in the event of non availability of suitable candidates, it would be the responsibility of the government in Finance and Planning (FW) Department to issue required requisitions to the A.P. Public Service Commission or to the relevant recruitment Agency/Special Selection Board or to the District Employment Exchange for sponsoring candidates to be appointed. That being the rule position, 63 posts of Physical Directors/Librarians in Private Aided Junior Colleges in the State were filled up during the ban period from 1996-2003 in violation of provisions of Act 2 of 1994 and the orders issued in G.O.Ms.No.275 dated 14.12.1995 without getting prior approval from the Government and requested the Government to cancel all the irregular appointments made during the ban period i.e., 1996- 2003. 6. The G.O.Ms.No.119 dated 22.03.1991 and G.O.Ms.No.12 dated 10.01.1992 relates to qualification and procedure to be followed and constitution of Selection Committee for filling up the vacancies in Junior and Degree Colleges in the State. Though the staffing pattern of the college is given by the Government while admitting the college into grant-in-aid in the first instance, prior permission has to be obtained from the government for filling up vacant posts in aided Junior Colleges as per G.O.Ms.No.275 dated 14.12.1995. In all these cases, no permission has been obtained from Government. The Commissioner without getting prior approval from the Government has given permission to the management of Aided Junior College to fill up the vacant posts of Librarians/Physical Directors during ban period, hence the appointments made during the ban period 1996-2003 are irregular. The Government issued G.O.Ms.No.35 Higher Education (CE-II-1) Department dated 27.3.2006 imposing ban on filling up vacant aided posts in Private Aided Junior/Degree Colleges and Polytechnics, through direct recruitment except in respect of SC/ST backlog vacancies. It has also been decided by the government to initiate disciplinary action against the concerned Commissioner/Director/officials who were responsible for these irregular appointments under Rule 24 (1) of APCS (CC&A) Rules, 1991. 7. The petitioner filed W.P.M.P.No.13229 of 2012 to direct the respondents to admit the petitioner into grant-in-aid and pay salary on par with Sri P. Venugopal Reddy who is similarly placed like the petitioner, pending disposal of the Writ petition. The said W.P.M.P was disposed of on 03.09.2012 holding that the petitioner was selected by the duly constituted selection committee. The District Vocational Educational Officer, Guntur was a nominee of the government in the selection committee. The petitioner was selected by the Committee and appointed by the 3rd respondent College and nearly 63 other Physical Directors/Librarians who have been similarly approved were selected for appointment in various colleges in the State. However, in pursuance of the interim order, the petitioner is being paid minimum salaries from 01.10.2012 onwards. The petitioner was selected by the Committee and appointed by the 3rd respondent College and nearly 63 other Physical Directors/Librarians who have been similarly approved were selected for appointment in various colleges in the State. However, in pursuance of the interim order, the petitioner is being paid minimum salaries from 01.10.2012 onwards. When the appointments of the 63 Physical Directors/Librarians in the Private Aided Colleges sought to be cancelled, they approached the common High Court of Andhra Pradesh. By virtue of the interim order, they were continued and paid salaries. Finally, the batch of Writ Petitions in W.P.Nos.2543 of 2010 and batch were allowed by High Court for the State of Telangana, by order dated 11.09.2019. The operative portion reads thus: “Having considered the rival submissions made by the learned counsel on either side, this Court is of the view that the impugned show cause notices have been issued to the petitioners based on G.O.Ms.No.275 dated 14.12.1995, whereas the 2nd respondent has given permission to fill up the vacancies much prior to the issuance of G.O.Ms.No.275 dated 14.12.1995 i.e., 20.3.1995. Entire regular selection process was over before issuance of G.O.Ms.No.275 dated 14.12.1995. The contention of the respondents that the appointment of the petitioners is contrary to G.O.Ms.No.275 dated 14.12.1995 has no application to the cases on hand. Admittedly, G.O.Ms.No.275 dated 14.12.1995, has no application to the facts and circumstances of the case as the said G.O was issued after lapse of nine months from the date of giving permission by the 2nd respondent to the 4th respondent to fill up the said vacancies. It is also noticed that the impugned show cause notices were issued to the petitioners without taking into account G.O.Ms.No.75 dated 23.09.2002, wherein it was categorically held by the State Government that G.O.Ms.No.275 dated 14.12.1995has no application when it comes to appointment made in aided private educational institutions. Hence, all the writ petitions are liable to be allowed. Accordingly, all the writ petitions are allowed and the impugned Memos dated 02.01.2010 and the impugned show cause notices dated 12.01.2010 are set aside. No costs.” The orders of the High Court were implemented after filing Contempt Case, by issuing proceedings Rc.No.Admn.I/1055/2020 dated 08.02.2021 by the Commissioner of Intermediate Education, Telangana State, Hyderabad and they were being continued and paid salaries by admitting them into grant-in-aid posts. This Court also following the said judgment allowed the several writ petitions. No costs.” The orders of the High Court were implemented after filing Contempt Case, by issuing proceedings Rc.No.Admn.I/1055/2020 dated 08.02.2021 by the Commissioner of Intermediate Education, Telangana State, Hyderabad and they were being continued and paid salaries by admitting them into grant-in-aid posts. This Court also following the said judgment allowed the several writ petitions. One such writ petition is W.P.No.2485 of 2010. The learned counsel for the petitioner contends that the petitioner is also similarly placed. 8. Learned Government Pleader for Higher Education vehemently contended that the petitioner’s case is not similar and identical to that of the case of 63 persons who were appointed as Physical Directors and Librarians in the Private Aided Junior Colleges during the ban period 1996-2003 in violation of the provisions of Act 2 of 1994 and G.O.Ms.No.275 dated 14.12.1995 without getting prior approval from the Government and subsequently their appointment is sought to be cancelled by issuing show cause notices. This Court interfered and granted interim direction and by virtue of the interim order therein, they were continued and now in pursuance of the interim order granted in batch of writ petitions, they were continued and admitted into grant-in-aid. The marked difference in this case is that their appointments were made after issuance of G.O.Ms.No.275 dated 14.12.1995 as such, the orders granted in other writ petitioners are not applicable to the petitioner as he was appointed on 16.7.2002, subsequent to issuance of G.O.Ms.No.275 dated 14.12.1995 and ban imposed and subsequently, the 2nd respondent contrary to the provisions of the Act 2 of 1994 and G.O.Ms.No.75 dated 23.09.2002 admitted grant-in-aid without seeking prior approval of the 1st respondent Government and the provisions of G.O.Ms.No.75 are not applicable to the appointments made in the Junior Colleges and Degree Colleges and it is applicable only to the appointments made in schools and his appointment is also not a special drive recruitment to the backlog vacancies for SCs and STs as exempted from G.O.Ms.No.35 dated 27.3.2006 and the exemption is only prospective and the petitioner cannot compare himself with that of the other persons and writ petition is devoid of merits and is liable to be dismissed. 9. The point that would arise for consideration is whether the selection and appointment of the petitioner as Physical Director is legal and valid? 10. 9. The point that would arise for consideration is whether the selection and appointment of the petitioner as Physical Director is legal and valid? 10. Having carefully considered the facts and circumstances, submission of the counsel and perused the record, this Court found that the 3rd respondent College issued Advertisement dated 10.05.2002 with prior permission of the 2nd respondent to fill up the single and solitary post of Physical Director in the 3rd respondent college. But a perusal of the advertisement filed along with the annexure –V at Page No.25 of the writ affidavit reads that “applications are invited for the post of Physical Director (Aided Post). The minimum qualification for this post is M.P.E.D with 50% of aggregate marks. Applications should reach the correspondent on or before 25.5.2002. One copy should sent to D.V.E.O., Guntur”. A reading of the advertisement clearly shows that the post is not earmarked for any reserved candidates like SC, ST and BC and is not a special drive to fill up the post of backlog vacancies. The said advertisement was issued after coming into force of Act 2 of 1994 and G.O.Ms.No.275 dated 14.12.1995. The exemption granted in G.O.Ms.No.35 dated 27.3.2006 cannot be made applicable retrospectively and it operates only prospectively. In G.O.Ms.No.75 dated 23.9.2002 it was made clear that G.O.Ms.No.275 dated 14.12.1995 has no application when it comes to appointments made in aided private educational institutions. But the appointment of the petitioner is prior to the said clarification. The said GO is only applicable to the School Education Department as contended by the learned Government Pleader but not to the Junior Colleges. After the judgment dated 11.9.2019 passed in W.P.No.2543 of 2010 by the High Court for the State of Telangana, following the same, this Court also disposed of W.P.No.2485 of 2010 on 18.11.2019. The operative portion of the order reads thus: “Having regard to the reasons assigned in the said order, this Court does not propose to take a different view from the High Court for the State of Telangana in the above said order. In view of the above order, this Court deems it appropriate to allow the present writ petition also following the said order. In view of the above order, this Court deems it appropriate to allow the present writ petition also following the said order. In view of the aforesaid reasons, the writ petition is allowed and the impugned memo, dated 02.01.2010 and consequently show causes, dated 12.01.2010 are hereby set aside.” In the said judgment, it is specifically held that appointment and recruitment and permission and approval by the Commissioner and Director of Intermediate Education was given much prior to G.O.Ms.No.275 dated 14.12.1995 and that is the specific stand of the petitioners therein and by approving the same, the writ petitions were allowed and implemented. The facts and circumstances in the present case are totally on a different footing. In the present case, the petitioner was appointed on 16.07.2002. Even though the procedure is followed as enumerated in G.O.Ms.No.12 for his selection and appointment, but the 2nd respondent, while permitting the 3rd respondent to appoint the petitioner as Physical Director he has not obtained prior approval of the 1st respondent Government as per G.O.Ms.No.275 dated 14.12.1995. The contention of the learned counsel for the petitioner is that in similar circumstances, the Government has extended the benefit of admitting grant-in-aid to Sri P. Venugopal Reddy, Physical Director, Sri Venugopal Swamy Junior College, Nellore through G.O.Ms.No.11 dated 12.3.2012 and the petitioner is also entitled for the same relief. However, it is for the appropriate Government to extend the benefit of admitting grant-in-aid in the case of the petitioner. Hence, the benefit of G.O.Ms.No.11 dated 12.3.2012 could not be extended to the petitioner and the said contention of the learned counsel for the petitioner is unsustainable. The petitioner’s further contention that similarly situated persons to that of the petitioner were appointed and admitted into grant-in-aid and the case of the petitioner is denied. However, it is well settled law that Article 14 of the Constitution of India enshrines only positive equality, Hence, the contention of the counsel for the petitioner holds no water. 11. In view of the above discussion, this Writ Petition is found to be devoid of merits and is liable to be dismissed and is accordingly dismissed. No order as to costs. As a sequel thereto, miscellaneous petitions, if any, pending shall stand closed.