WP/23471/2011 of S. Saramma Vs The State of A.P. on 31 December 2015

ORDER:

This writ petition, filed under Article 226 of the Constitution ofIndia, assails the orders of the Regional Joint Director of SchoolEducation, Kadapa vide Rc.No.2217/B2/2010 dated 11.4.2011whereunder and whereby the 2[nd] respondent rejected to grantapproval for appointment of the petitioner.

2. According to the petitioner, she was appointed as Sweeper-cum-Scavenger in the 3[rd] respondent school on daily wage basis. Subsequently, after the death of one Smt.P.Kondamma, a regularvacancy arose and the petitioner was appointed against the saidvacancy. Thereafter, the 3[rd] respondent sent proposals for approvaland according to the petitioner, the same was followed by reminder on1.8.1999. The District Educational Officer, Kadapa vide proceedingsRc.No.15274/88/99 dated 8.12.1999, rejected the same while referringto the proceedings of the Commissioner and Director of SchoolEducation issued vide proceedings L.Dis.No.2177/D1-2/93 dated3.1.1994. The petitioner herein challenged the said proceedings of theDistrict Educational Officer dated 8.12.1999 by way of filingW.P.No.6196 of 2000 and the same was allowed by this Court by wayof an order dated 15.7.2010, with a direction to the respondents topass further orders. Thereafter, petitioner filed C.C.No.268 of 2011and subsequently, the 2[nd] respondent passed an order videproceedings Rc.No.2217/B2/2010 dated 11.4.2011, rejecting theproposal on the ground that the said request is not feasible forconsideration, in accordance with law.

3. Calling in question, the validity and legal sustainability of thesaid order dated 11.4.2011 passed by the 2[nd] respondent-RegionalJoint Director of School Education, Kadapa, the present writ petition

4. On 19.8.2011, this Court while admitting the writ petition, issuedrule nisi to the respondents. Responding to the rule nisi, counteraffidavit deposed by the 2[nd] respondent has been filed on behalf ofrespondents 1 and 2, denying the averments in the writ affidavit and inthe direction of justifying the impugned action. The 3[rd] respondentfiled counter, practically supporting the case of the petitioner.

5. Heard Sri Kasa Jaganmohan Reddy, learned counsel for thepetitioner, learned Government Pleader for Respondents and 2 and SriO.Uday Kumar, learned counsel for Respondent No.3, apart fromperusing the material available on record.

6. CONTENTIONS/SUBMISSIONS OF THE LEARNEDCOUNSEL FOR THE PETITIONER

6.1

The questioned order dated 11.4.2011 passed by theRegional Joint Director of School Education, Kadapa-2[nd]respondent is highly illegal, arbitrary, unreasonable andviolative of Articles 14, 16 and 21 of the Constitution of India.

The 2[nd] respondent ought to have seen that the DistrictEducational Officer, by way of proceedings Rc.No.2599/A/85dated 31.1.1986 converted three contingent posts including thepost held by the petitioner in the 3[rd] respondent school into lastgrade service and absorbed the incumbents into time scale of Rs.290-425 with effect from 1.4.1985.

6.2

6.3

The impugned action is contrary to Rule 15 (4) A.P.Educational Institutions (Establishment, Recognition,Administration and Control of Schools) Rules, 1988 as notifiedvide G.O.Ms.No.524, Education (Rules), dated 20.12.1988.

6.4The 2[nd] respondent ought to have seen that one KCS Vijay Kumar filed W.P.No.2592 of 1988 questioning the proceedingsof Director of School Education, A.P., Hyderabad dated3.1.1994 and the same was allowed by this Court on 14.7.1999.

Rejection of approval by the 2[nd] respondent after lapse ofnearly 18 years is bad and contrary to Sections 7 and 8 ofChildren to Free and Compulsory Education Act, 2009 andSection 45 of A.P. Education Act, 1982.

6.5

7. SUBMISSIONS/CONTENTIONS OF LEARNED GOVT.PLEADER

7.1

The Management did not obtain prior permission from theDepartment and there is no provision in the Rules for filling upcontingent post converted into Class-IV in aided schools byother person as the Class-IV post cease to exist whenever theperson dies or retires from service as such the rejection ofapproval cannot be faulted.

7.2The claim of the petitioner would not come under G.O.Ms.No.237 Education dated 4.4.1985.

7.3

The case of Sri KCS Vijaya Kumar cannot be equated withthe petitioner as he was appointed against a contingent postwith effect from 20.6.1985 and later appointed on regular basisin the converted full time contingent post into Class-IV post ofWatchman from 1.8.1994 in the retirement vacancy and thesame was approved.

7.4

The petitioner is not entitled for the benefit underG.O.Ms.No.212 Finance and Planning dated 22.4.1994 as hefailed to complete five years as on 21.11.1993.

8. The learned counsel for 3[rd] respondent has totally supported thecase of the writ petitioner.

9. In the above backdrop, now the issue that boils down for consideration of this Court is whether the order impugned in thepresent writ petition is tenable and the petitioner is entitled for anyrelief from this Court under Article 226 of the Constitution of India.

10. The information available before this Court vividly discloses thatthe Government of A.P. vide G.O.Ms.No.237 Education (H1)Department dated 4.4.1985 issued instructions for conversion of fulltime contingent posts of Watermen, Watchmen, Sweepers,Scavengers, Gardner-cum-Sweeper in private aided schools intoClass-IV posts subject to the fulfillment of the following conditions:

(1) The posts have been created under the orders ofcompetent authority.

(2) They are full time

(3) They are in receipt of aid, and that

(4) They have been in existence for a period of not lessthan 10 years as on 1.4.1985.than 10 years as on 1.4.1985.

11. It is to be noted at this juncture that while permitting suchconversion, the State Government also had withdrew the contingentgrant of 6% on the total teaching grant paid to the aided schools.

12. In response to the proposals sent by 3[rd] respondent-School on6.9.1985, the District Educational Officer, Kadapa vide proceedingsRc.No.2399.A3/85 dated 31.1.1986 ordered conversion of followingthree contingent staff into Class-IV with effect from 1.4.1985:

(1) Sri R.C.Devadanam, Watchman.

(2) Sri D.Abel, Gardner-cum-Waterman.

(3) Sri P.Kondamma, Sweeper.

13. Smt.P.Kondamma who was admitted to grant-in-aid died on6.5.1993 and the petitioner, who according to the counter of 3[rd]respondent was working on temporary basis from 1990 was appointedas Sweeper-cum-Scavenger vide orders dated 8.5.1993 in the saidvacancy. Subsequently, the 3[rd] respondent sent proposals and theDistrict Educational Officer, Kadapa vide proceedings dated 8.12.1999

rejected the said proposals while referring to the proceedings of theDirector of School Education dated 3.1.1994. Questioning the saidproceedings dated 8.12.1999, W.P.No.6196 of 2000 was filed and thesaid writ petition was allowed on 15.7.2010 and paragraphs 4 to 7 ofthe said order read as under:

“4. Learned counsel for the petitioner submitted that the petitioneris working as scavenger in the 4 th respondent institution since1993 and the proposal for absorption into regular vacancy wassubmitted to respondents authorities was rejected by the 1 strespondent vide proceedings dated 3-1-1994 (impugnedproceedings). Learned counsel also submitted that theproceedings dated. 3-1-1994 issued by the 1[st] respondentstating that there was no provision in the rules for filling up of thecontingent posts converted to class IV category in aided schoolsby other persons, was set aside in W.P. No. 2592/1998 and thesaid judgment became final. Learned counsel further submittedthat in view of the said judgment of a learned single Judge of thiscourt, the petitioner is also entitled for absorption and requestedthis court to pass a similar direction.

5. Learned Government Pleader for School Education appearingon behalf of official respondents submitted that the proposalssubmitted by 4 th respondent school were rejected based on theproceedings dated 3-1-1994, but the fact remains that the saidproceedings were set aside by a learned single Judge of thisCourt in W.P.No. 2592 of 1998.

6. The record shows that no representation on behalf of 4[th] respondent even though notices are served.

7. Having heard the learned counsel for petitioner and also theGovernment Pleader for School Education and following thejudgment in W.P. No. 2592 of 1998 dated 14-7-1999, it wouldsuffice if the impugned order of the 1[st] respondent is set asideand the matter is remanded to the respondent Nos. 1 & 2 toconsider the same afresh in accordance with law.”

14. Now, by virtue of the impugned proceedings dated 11.4.2011,the Regional Joint Director of School Education rejected the proposalssaying that approval of appointment of the petitioner in the vacancycaused due to the death of Smt.P.Kondamma is not feasible forconversion in accordance with law.

15. At this juncture, it would be apt and appropriate to refer to theprovisions of Rule 15 (4) of the A.P. Educational Institutions(Establishment, Recognition, Administration and Control of Schools)Rules, 1988 as notified vide G.O.Ms.No.524, Education (Rules), dated20.12.1988, which reads as under:

“15. Procedure for appointment of staff anddisciplinary control:

(4) (a) The Competent Authority shall not take more thanthree months from the date of receipt of the proposals, forthe approval of the appointments made by themanagements, failure of which the appointments madeshall be treated as ratified, except when the candidates areotherwise ineligible for the appointment.

(b) (i) The competent authority for approval of appointmentsmade in respect of Hindi Patasalas, Hindi Vidyalayas andOriental Schools, shall be Director of School Education.

(ii) The competent authority for approval of appointmentsmade in respect of Seccondary Schools (High Schools)shall be the Regional Joint Director of School Educationconcerned.

(iii) The competent authority for the approval of theappointment made in respect of Pre-Primary, Primary andUpper-primary Schools, shall be the District EducationOfficer concerned.”

16. In the instant case, the material on record, in clear andunequivocal terms, discloses that the competent authority did notrespond in accordance with the said provision of law. The rules did notobligate the management to obtain prior approval and on the otherhand, the same requires post-ratification. It is also significant to notethat earlier KCS Vijay Kumar, who is also working along with thepetitioner in the same school, filed W.P.No.2592 of 1988 questioningthe proceedings of Director of School Education, A.P., Hyderabad dated 3.1.1994. By virtue of the said proceedings dated 3.1.1994, theDirector of School Education clarified that there is no provision in therules for filling up of the contingent posts converted to Class-IVcategory in aided schools by other persons, as the Class-IV postsceases to exist whenever the person retired or dies from service. ThisCourt in the above mentioned W.P.No.2592 of 1988, did set aside theproceedings of the Director of School Education and directed therespondents herein to consider the case of the petitioner for absorptioninto Class-IV category. It is also not in dispute that the services of SriK.C.S. Vijay Kumar were regularized and approved. A perusal of theimpugned order further discloses that the Regional Joint Director ofSchool Education rejected the approval of the appointment of thepetitioner on the ground that the petitioner did not fulfill therequirements as per G.O.Ms.No.212 dated 22.4.1994. The said standtaken by the 2[nd] respondent, in the considered opinion of this Court isnot relevant in the light of the facts and circumstances of the case. Inview of the same, this Court finds absolutely no justification on the partof the respondents in rejecting approval in favour of the petitioner.

17. For the aforesaid reasons, the writ petition is allowed, settingaside the order of the Regional Joint Director of School Education,Kadapa vide Rc.No.2217/B2/2010 dated 11.4.2011 and consequentlythe respondents are directed to grant approval in favour of thepetitioner. This exercise shall be completed within a period of threemonths from the date of receipt of this order. It is also made clear thatthe petitioner is entitled for all monitory benefit from the date on whichthe proposals were sent by the 3[rd] respondent college. As a sequel,the miscellaneous petitions, if any, shall stand closed. There shall be no order as to costs.

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A.V.SESHA SAI, J

THE HON’BLE SRI JUSTICE A.V.SESHA SAI

W.P.No.23471 of 2011

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