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2024 DIGILAW 1595 (AP)

L. S. Vijayabhaskar v. State of Andhra Pradesh

2024-12-19

HARINATH NUNEPALLY

body2024
JUDGMENT : 1. The petitioners are aggrieved by the orders passed by the 2nd respondent in Rc.No.6535/B2/2005, dated 06.07.2011, whereby the 2nd respondent rejected the approval for the selection and appointment of the petitioners forwarded by the 4th respondent. 2. Sri K.G. Krishna Murthy, learned Senior Counsel appearing on behalf of Sri K. Raghuveer, learned Counsel for the petitioners, submits that the petitioners were appointed as secondary grade teacher, physical education teacher and Telugu Pandit Grade-II, respectively. The petitioners were appointed after following the procedure of the staff selection committee in accordance with the rules. The 3rd respondent forwarded the proposals to the 2nd respondent to approve the selections vide proceedings dated 04.12.2004. 3. The District Education Officer, Kurnool, on the proposal submitted by Deputy Educational Officer, Dhone had accorded permission to fill up the vacancies. The selection committee also consisted of the Deputy Educational Officer, Dhone as a nominee of the Government. The 2nd respondent vide proceedings dated 31.05.2005 rejected the approval on various grounds. 4. It is submitted by the learned Senior Counsel that in accordance with the Rule 12(8), the competent authority must pass orders within two months from the date of receipt of proposals and if the competent authority does not pass necessary orders within two months it is deemed approval. 5. The petitioners filed WP No.9389 of 2005, aggrieved by the orders of the 2nd respondent, dated 31.03.2005; this Court allowed the writ petition on 24.03.2011. The learned Single Judge negated the contentions of the respondents and also referred to the judgment of this Court in WP No.9375 of 2005. The writ appeal preferred by the State was dismissed, and the SLP preferred by the State was also dismissed. This Court, while allowing the writ petition vide its judgment dated 24.03.2011, relegated the matter to the 2nd respondent to consider the case of petitioners for approving the proposals sent by the District Education Officer, dated 04.12.2004. 6. It is submitted by the learned Senior Counsel that the impugned proceedings passed by the 2nd respondent unmindful of the observations of this Court in WP No.9389 of 2005. The following three grounds are cited for rejecting the approval of appointments. They are : (i) The management has not followed the rule of reservation as per Rule 12(6) of the Rules in G.O. Ms. No.1, Education, dated 01.01.1994. The following three grounds are cited for rejecting the approval of appointments. They are : (i) The management has not followed the rule of reservation as per Rule 12(6) of the Rules in G.O. Ms. No.1, Education, dated 01.01.1994. (ii) As per the judgment of the Hon'ble Supreme Court of India, the act was amended as Act 78-C added to the Andhra Pradesh Education Act; 1982 in Act No.40 of 2008, the Rule of Special Representation (Reservation) in favour of Scheduled Castes, Scheduled Tribes and Backward Classes shall be applicable for appointments to the posts in Private Educational Institutions : (iii) The Government of A.P. have imposed ban on to fill up the aided posts as per Government Memo. No.12080/COSE/A2, 2004, dated 20.10.2004 and the issue pertains to the rationalization of Teaching aided posts and filling up of posts is pending before the Hon'ble Supreme Court of India vide SLP No.9541/2007. 7. It is submitted by the learned Senior Counsel that the petitioners that this Court granted interim orders dated 11.08.2011 directing the 2nd respondent to accord approval for the appointment of the petitioners. Aggrieved by this order WA No.1133 of 2012 was preferred, which was dismissed on 12.09.2012 and the SLP filed by the respondents was also dismissed. 8. It is submitted that, the 4th respondent issued proceedings dated 05.12.2013 referring to the permission accorded by the 2nd respondent for appointing the petitioners as Teachers. These proceedings are in pursuance of the approval of the 2nd respondent to the recommendations of the 3rd respondent dated 04.12.2004. 9. The learned Senior Counsel submits that the impugned proceedings are issued by referring to three points which cannot be made applicable either on facts, law or logic. It is submitted that Rule 12(6) of the A.P. Educational Institutions (Establishment, Recognition, Administration and Control of Schools under Private Managements) Rules, 1993 would not be applicable to the 4th respondent/school. The issue was adequately dealt by a Division Bench of this Court in Tirumala Devi v. State of Andhra Pradesh and Rule 12(6) was made inapplicable to Private Educational Institutions. It is also submitted that the petitioners were appointed as per the roster points, as such it cannot be said the appointment of petitioners is not in accordance the roster points. It is also submitted that the petitioners were appointed as per the roster points, as such it cannot be said the appointment of petitioners is not in accordance the roster points. Be that as it may when Rule 12(6) cannot be applicable to Private Educational Institutions and the issue was decided by this Court which remains unchallenged till date. The Objection No.1 raised in the impugned proceedings for rejecting the approval has to be found fault with. 10. The Objection No.2 with regard to the application of Amended Act 78(c) with regard to Rule of Special Representation (Reservation) in favour of Scheduled Castes, Scheduled Tribes and Backward Classes to be applicable to be appointed for the posts in Private Educational Institutions. It is submitted by the learned Senior Counsel that the amendment was proposed in the year 2008 and given retrospective effect from 01.01.1994. However, the same cannot be made applicable to the petitioners as their selections were made almost five years prior to the amendment. 11. The learned Senior Counsel also submits that there is no merit in the third objection for rejecting the petitioner's approval. It is submitted that the 2nd respondent refers to the ban which was imposed by the Government on filling up of aided posts and the issue was pending adjudication before the Hon'ble Supreme Court of India in SLP No.9541 of 2007. 12. The learned Senior Counsel submits that the petitioners are entitled for approval of their appointments from the date of their initial appointment i.e., 22.07.2004. It is submitted that in the case of a Teacher working in the 4th respondent/school this Court in WP No.24135 of 2012 had approved the appointment of the petitioner from the date of approval. The WA No.370 of 2021 preferred by the State was dismissed. 13. The learned Government Pleader appearing for the respondents submits that the appointments have to be made in accordance with Rule 12(8) and any appointment made by the school for the aided post ought to be only after the approval of the competent authority. It is submitted that the 4th respondent had issued the orders of appointment as if they were the ultimate authority. 14. It submitted that these appointments were made in pursuance of G.O. Ms. No.75, dated 23.09.2002. However, the Government issued G.O. Ms. No.91, dated 12.11.2002 and kept G.O. Ms. No.75 in abeyance. 15. It is submitted that the 4th respondent had issued the orders of appointment as if they were the ultimate authority. 14. It submitted that these appointments were made in pursuance of G.O. Ms. No.75, dated 23.09.2002. However, the Government issued G.O. Ms. No.91, dated 12.11.2002 and kept G.O. Ms. No.75 in abeyance. 15. The learned Government Pleader also submits that the 78(c) amendment came into force with effect from 01.01.1994, and the rule of reservation with respect to special representation for Scheduled Castes, Scheduled Tribes and Backward Classes was made applicable for private Educational Institutions. 16. It is submitted by the learned Government Pleader that on 01.06.2022, the 4th respondent/school ceased to be a aided school, and the petitioners are accommodated in Government Schools. The 3rd petitioner attained the age of superannuation on 31.05.2020 while in service of the 4th respondent/school. 17. It is submitted that the orders of regularization was passed by the 2nd respondent vide proceedings dated 05.12.2013 in pursuance of the interim directions of this Court, and the orders dated 05.12.2013 carry a rider that the approval of the appointment of the petitioners is subject to outcome of the writ petition. It is submitted that as the appointment of the petitioners is not in accordance with the rules, the same deserves to be set aside. The learned Government Pleader for the respondents relies on Rule 3 of Act No.37 of 2005 of Andhra Pradesh Private Aided Educational Institutions Employees (Regulation of Pay) Act, 2005. Rule 3. Counting of Service for fixation of Pay, Automatic Advancement Scheme, Career Advancement Scheme and Pension : Notwithstanding anything contained in any order of the Government or any judgment of any Court or Tribunal, every employee of a Private Aided Educational Institution, shall, from the date of approval of his appointment in an aided post, be eligible to count the service rendered after such date of approval, for fixation of pay in the said post and Automatic Advancement Scheme, Career Advancement Scheme. Pension made applicable or extended to such employee from time to time. 18. The learned Government Pleader for the respondents relies on Rule 2 of Act No.9 of 2000 of Andhra Pradesh Private Aided Educational Institutions Employees (Regulation of Pay) Act, 2005. 2. Pension made applicable or extended to such employee from time to time. 18. The learned Government Pleader for the respondents relies on Rule 2 of Act No.9 of 2000 of Andhra Pradesh Private Aided Educational Institutions Employees (Regulation of Pay) Act, 2005. 2. Eligible service for Government Schemes and Pension :--Every employee of Private Aided Educational Institution shall, from the date of approval of his appointment in a post duly admitted to grant-in-aid be eligible to count his service rendered after such date of approval for fixation of his pay and also his pension under the schemes formulated, made applicable or extended to the employees of private Aided Institutions from time to time. 19. The following is the consideration of the Court after hearing the submissions of the learned Senior Counsel and the learned Government Pleader for the respondents and after perusing the record. 20. The petitioners were initially appointed in an existing vacancy in the year 2004. The petitioners underwent the selection process. The selection committee approved the petitioners' selection, and the Deputy Educational Officer is a member of the Selection Committee. The District Education Officer, after having found the necessity for approving the appointments of the petitioners, forwarded his recommendation for the approval of the competent authority. 21. The 2nd respondent kept the issue pending for more than four months and passed orders rejecting approval. This Court, in the earlier round of litigation, allowed the writ petition; however, it issued a positive direction to the 2nd respondent to pass orders of approval. The 2nd respondent appears to have understood the order passed by this Court in WP No.9389 of 2005 in a completely opposite sense and, as such, passed an order which is impugned in the present writ petition. It is not known as to whether the 2nd respondent applied his mind to the order passed by this Court or the 2nd respondent was keen on exhibiting his executive power for passing the order impugned in the above writ petition. The 2nd respondent is discharging a responsible duty to the State, his responsibility is also to implement the orders passed by a Court of law. It has to be construed that the impugned orders are passed by the 2nd respondent consciously and willfully. The 2nd respondent is discharging a responsible duty to the State, his responsibility is also to implement the orders passed by a Court of law. It has to be construed that the impugned orders are passed by the 2nd respondent consciously and willfully. At any rate the petitioners would have to be held as entitled for regularization from the day this Court passed a direction to the 2nd respondent to accord approval for the appointment of the petitioners. This Court passed the said direction on 11.08.2011. The respondents have delayed implementation of the order and passed the orders of approval on 05.12.2013. 22. The reasons cited for rejecting the approval of appointments of the petitioners are not legally valid. Rule 12(6) would not be applicable to the 4th respondent, and the amendment to the A.P. Educational Act was proposed in the year 2008, and the same cannot be made applicable for the appointment orders of the petitioners, which were in the year 2003. The 3rd objection with regard to recruitment during the ban and then the matter was pending before the Hon'ble Supreme Court in SLP No.9541 of 2007 is concerned, the SLP was dismissed by the Hon'ble Supreme Court on 06.09.2011. 23. The 3rd petitioner has attained the age of superannuation during pendency of the writ petition. The claim of the petitioners for considering their appointment from the date of initial appointment i.e., 22.07.2004 is concerned, the appointment was subject to the approval of the competent authority and the petitioners had to fight a legal battle for approval of the competent authority which was ultimately passed on 05.12.2013. However, the petitioners would be entitled for counting their seniority from the date of passing of interim orders of this Court on 11.08.2011. The order passed by the respondents dated 05.12.2013 ought to have referred to the dated 11.08.2011 as the date from which the petitioners services would be considered as approved. The impugned proceedings in the writ petition also amount to willful act of contempt committed by the 2nd respondent. The reasons assigned for rejection of the petitioners claim for approval was admittedly considered on merits and held in favour of the petitioners in the earlier round of litigation in WP No.9389 of 2005 by this Court vide order dated 11.04.2011. 24. The reasons assigned for rejection of the petitioners claim for approval was admittedly considered on merits and held in favour of the petitioners in the earlier round of litigation in WP No.9389 of 2005 by this Court vide order dated 11.04.2011. 24. The rule position is clear on the aspect that the date of approval has to be considered for Counting of Service for fixation of Pay, Automatic Advancement Scheme, Career Advancement Scheme and Pension. However, when there was a positive direction from this Court on 11.08.2011, the respondents ought to have referred to the date 11.08.2011 in their proceedings dated 05.12.2013 as the date from which the petitioners services are deemed approved. In view of the same the claim of the petitioners for considering their date of approval as 22.07.2004 cannot be considered. 25. Considering the same, the impugned proceedings dated 06.07.2011 are hereby set aside and the claim of the petitioners for considering their appointment as 22.07.2004 is rejected and it is held that the services of petitioners as approved from 11.08.2011 and this date shall be considered as a date of appointment for all purposes. 26. With these observations the writ petition is partly allowed. There shall be no order as to costs. 27. Pending miscellaneous petitions, if any, shall stand closed.