WP/3203/2000 of Smt. V.Padmavathi, Vs Board of Intermediate Education, A.P., on 30 December 2011

O R D E R:

Heard learned counsel appearing for the petitioner and thelearned counsel appearing for the first respondent. None appearsfor the second respondent.

2. This writ petition is filed under Article 226 of theConstitution of India seeking issuance of a writ of Mandamusdeclaring the action of the first respondent in cancelling theapproval of appointment of the petitioner as Junior Lecturer(Commerce) in Sri Magety Guravaiah Junior College, Guntur, asarbitrary, illegal and violative of Articles 14 and 16 of theConstitution of India and consequently to direct the respondents to approve her appointment as Junior Lecturer (Commerce) andcontinue her as such in an aided post.

3. The following are the averments of the writ petition:

The petitioner, who secured first class degrees in B.Com.,and M.Com., was initially appointed as Junior Lecturer inCommerce in the second respondent junior college basing on theinterview conducted in August 1988. Subsequently, sheparticipated in the selections to the aided Junior Lecturers held on27.10.1994. Along with the other candidates, she was appointedas Junior Lecturer in the aided post vide orders dated 29.10.1994. The first respondent approved the appointment of the petitioner asJunior Lecturer in Commerce in an aided post on 16.4.1996 witheffect from 29.10.1994 and her post was also admitted to grant-in-aid vide orders dated 28.5.1996 with effect from 29.10.1994.

4. Ever since her initial appointment, the petitioner has beenworking as Junior Lecturer. Subsequently, the first respondentissued a show cause notice on 16.6.1999 alleging that the secondrespondent did not follow the procedure while selecting thecandidates as Junior Lecturers as required in G.O.Ms.No.12,Education (CE-I-2) Department dated 10.01.1992 and asked thepetitioner to submit her explanation as to why her appointmentshould not be cancelled. The petitioner submitted a detailedexplanation within the time stipulated contending inter alia that theselection process was strictly in accordance with G.O.Ms.No.12and also as per the rules prescribed therefor and thus havingapproved the selection to the post of Junior Lecturer, the firstrespondent is not supposed to cancel her appointment.

5. The first respondent filed its counter and the second

6. In the counter-affidavit filed on behalf of the firstrespondent, the first respondent contended as follows:

As per rules and also as required in G.O.Ms.No.12,Education (CE-I-2) Department dated 10.01.1992 the managementhas to submit the proposals for approval of the appointmentswithin seven days from the date of selection, but in the instantcase the management sent the proposals for approval of theselection of the petitioner after a lapse of three years. Themanagement made the selections without prior approval of theBoard of Intermediate Education which is also contrary to therules. Further, the management instead of addressing theRegional Employment Exchange, Hyderabad, as perG.O.Ms.No.12 Education (CE-I-2) Department dated 10.01.1992,addressed the University Employment Information and GuidanceBureau, Waltair, for sponsorship of the candidates which iscontrary to the said G.O. and the rules.

7. Nextly, it has been contended that the managementadvertised the posts in two local daily newspapers instead ofadvertising them in two leading newspapers i.e., one national andthe other local which is also contrary to G.O.Ms.No.12 Education(CE-I-2) Department dated 10.01.1992.

8. Further it has been contended that the management did notobtain signatures of subject experts on minutes of the meetingrelating to the selection. It was also contended that after the firstrespondent approved the selection of the petitioner, the otherjunior lecturers who were selected and whose names have beenincluded in the selected list approached the minister for Higher Education and they also have been insisting upon the firstrespondent to approve their names, as they approved the name ofthe petitioner. Thus, it is submitted by the first respondent thathaving found that the selection process is not in accordance withG.O.Ms.No.12 and also in accordance with the rules framed by thefirst respondent, the selection of the petitioner was cancelled afterissuing a show cause notice to her and therefore the writ petitionis liable to be dismissed.

9. Though the first respondent contended that the name ofthe petitioner is forwarded for approval only three years after thesaid selection, no material has been placed on record in proof ofthe said contention. Further, admittedly the first respondent on02.02.2000 cancelled the selection and appointment of thepetitioner after issuing a show cause notice on 16.6.1999. Thus,obviously the first respondent made the cancellation ofappointment of the petitioner long after its approval of the selectionof the petitioner. Moreover in fact, even though the RegionalEmployment Exchange, Visakhapatnam, was informed about theproposed selection of the candidates and the date of interview,none approved by the Regional Employment Exchange appearedfor the interview.

10. Further as rightly contended by the learned counselappearing for the petitioner which is a national daily newspaper isnot defined in clear terms anywhere. The second respondent gotadvertised the posts in two leading newspapers and therefore itcan be said that there is substantial compliance withG.O.Ms.No.12 Education (CE-I-2) Department dated 10.01.1992.

11. The crucial issues which arise for determination in this writ

petition are that the petitioner was appointed as Junior Lecturer inaided post vide orders dated 29.10.1994 and ever since she hasbeen working as such. The first respondent approved herappointment as Junior Lecturer in the aided post on 16.4.1996. The cancellation of her appointment was by order dated02.02.2000 which is long after the approval made by the firstrespondent. The petitioner secured first class in her graduationand Post-Graduation in Commerce and it is not the case of thefirst respondent that she did not possess any requisitequalification for the post. There were laches on the part of the firstrespondent in cancelling the appointment four years after approvalaccorded by it for the selection and appointment made by thesecond respondent. There is absolutely no basis for thecontention of the first respondent that the other candidates in theselection list were also insisting upon the first respondent throughthe Minister for Higher Education to approve their selection. Theapproval of the remaining candidates has nothing to do with theapproval of the selection of the petitioner which had already beenaccorded by the first respondent. The petitioner completed sixyears of service by the date of cancellation order dated 02.02.2000passed against her by the first respondent. Now, the petitionercompleted 18 years of service. After filing of the writ petition shewas allowed to continue in the post and she has been continuingas such by virtue of interim order passed by this court.

12. The contentions that the proposals for approval relating tothe petitioner were sent by the second respondent three yearsafter her selection and that the signatures of the subject expertswere not found in the minutes of the selection were raised for thefirst time in the counter and they did not find place either in theshow cause notice issued to the petitioner on 16.6.1999 or in the cancellation order passed on 02.02.2000. There is no disputeabout the fact that the selection Board was properly constitutedand it consisted of nominee of Director of Intermediate Educationand nominee of Board of Intermediate Education. Therefore, it isnot open for the first respondent to contend either that thesignatures of the subject experts were not obtained in the minutesof the selection or that the Board was not properly constituted.

13. In Mohinder Singh Gill and another v. The Chief ElectionCommissioner, New Delhi and others[[1]]the Supreme Court heldas follows:

“When a statutory functionary makes an orderbased on certain grounds, its validity must be judged bythe reasons so mentioned and cannot be supplementedby fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by thetime it comes to Court on account of a challenge, getvalidated by additional grounds later brought out.”

In the instant case the grounds urged by the first respondent viz.,that the name of the petitioner was sent for approval three yearsafter her selection and that the signatures of the subject expertswere not obtained in the minutes of the selection, were raised forthe first time in the counter and they are not part of the showcause notice or the cancellation order. The first respondent whileearlier according approval to the selection of the petitioner, wasaware of the grounds which are now urged and now it cannot turnround and say that the selection was not in accordance with theprocedure prescribed as per G.O.Ms.No.12 dated 10.01.1992 andas per the rules framed by the Board of Intermediate Education. Having accorded approval, the first respondent is not supposed tocancel the approval on technical grounds after a lapse of threeyears. Further there is substantial compliance with G.O.Ms.No.12

Education (CE-I-2) Department dated 10.01.1992 and also therules and therefore the selection of the petitioner by the secondrespondent and the approval accorded by the first respondentcannot be said to be vitiated for not following the prescribedprocedure.

14. For the reasons aforementioned, the writ petition succeedsand the same is allowed. The action of the first respondent incancelling the approval of appointment of the petitioner as JuniorLecturer in aided post in the second respondent college videProceedings Rc.No.811/E1-1/97 dated 02.02.2000 is declaredillegal being violative of Articles 14 and 16 of the Constitution ofIndia. The first respondent is directed to approve the appointmentof the petitioner as Junior Lecturer in the second respondentcollege and to continue the petitioner as Junior Lecturer inCommerce in the aided post. No costs.

Date: December 30, 2011.BSBL.R. Copy to be marked.

____________________

R. KANTHA RAO, J.

[1]AIR 1978 Supreme Court 851AIR 1978 Supreme Court 851