WP/6348/2005 of T. Appala Naidu S/o Chinnappanna Vs The Principal Secretary to Government, Education on 28 December 2007

ORAL ORDER:

This writ petition is filed seeking a Mandamus declaring the MemoNo.17705/PS-2/2004-3 dated 14.2.2005 issued by the first respondent asarbitrary, illegal and contrary to the provisions of A.P. Education Act andthe rules made thereunder and consequently direct the first respondent toaccord permission to respondents 2 and 3 to absorb petitioner into aidedSecondary Grade Teacher as per the judgment of this Court inW.P.No.10626 of 2003 dated 11.6.2003 and if necessary, shift the post toa needy school.

The facts are not much in dispute. Petitioner was appointed asSecondary Grade Teacher in fourth respondent school against anunaided vacancy after due permission from the authorities and aftersubjecting him to regular selection. Subsequently, an aided vacancyarose on 30.11.2001 due to retirement of incumbent. The fourthrespondent sent proposals to the third respondent recommending thecase of the petitioner for absorption in the said aided vacancy. The thirdrespondent sought permission of second respondent and in turn, thesecond respondent sought permission and approval of first respondent. Since the matter was pending for longtime and the first respondent wasnot considering the same, petitioner filed W.P.No.10626 of 2003 beforethis Court. This Court, by order dated 11.6.2003 disposed of the saidwrit petition directing the first respondent to pass appropriate orders onthe letter dated 7.1.2003 addressed to him by the second respondentwithin two months from the date of receipt of the order. When the saidorder was not implemented, petitioner filed Contempt Case No.1372 of2003. During the hearing of the said contempt case, respondentsproduced Memo dated 16.9.2003 issued by the first respondent, whereunder the second respondent was requested to implement theabove orders, after verifying the eligibility whether the petitioner wasunaided Secondary Grade Teacher appointed according to the rulesissued in G.O.Ms.No.1 Education (PS.2) Department dated 1.1.1994 andalso examine the roll and attendance particulars of the School as per therules in force. Thereafter, second respondent vide proceedings dated28.10.2003 directed third respondent to verify and furnish the serviceparticulars of petitioner along with role and attendance particulars duringthe academic year 2001-2002 and 2002-2003, which are relevant for thepurpose of considering the case of petitioner. When the third respondentsent the role and attendance particulars for subsequent years i.e. 2002-2003, second respondent vide proceedings dated 8.6.2004 requested thethird respondent to examine the role and attendance particulars as perrules. Thereafter, Government passed the impugned order dated14.2.2005 stating; “The Government have examined the case in detail and herebyorder that the individual had been appointed in an unaided post. If there is no adequate strength, the management has to wind upthat post, as they are the pay masters. The question of shiftingthe post to some other school does not arise. The managementis free to take a decision to wind up that post, as they hadcreated that post”.

Being aggrieved by the said order, the present writ petition is filed.

The learned counsel for petitioner strenuously contended that therights of the petitioner have already been determined in W.P.No.10626 of2003. The respondents, instead of verifying the records as per thedirections of this Court, have verified the particulars beyond 2002-2003and came to the conclusion that there is no strength available. Therefore,the question of approval of the petitioner against an aided vacancy doesnot arise. The learned counsel further states that even as on date, the aided vacancy against which, petitioner’s name was recommended forregular appointment is still available with fourth respondent school andneither the said post is surrendered nor withdrawn.

Heard both sides.

I am of the opinion that the case of the petitioner is required to beexamined for the purpose of absorption against an aided vacancy as perthe strength available during the academic year 2001-2002 and 2002-2003 and not beyond that period. Even in the counter filed by the fourthrespondent-management, it is admitted that during the period from 2001-2002 and 2002-2003, there was sufficient strength for engaging five (5)Teachers including the petitioner. Therefore, the case of the petitionerought to have been considered as per the strength available as on thatperiod. The respondents, instead of proceeding with the matter as perthe directions of this Court and as per the proceedings of secondrespondent dated 28.10.2003, adopted a novel method in rejecting thecase of petitioner by taking into consideration of subsequent events. Hadthe respondents have taken the strength of students available during theacademic years 2001-2002 and 2002-2003, it would have been clear thatpetitioner was fully qualified and eligible for being appointed. Further, itis always open for the respondents to transfer the petitioner along withpost to any other institution, if necessary. In my considered opinion, theimpugned order is arbitrary and illegal. The rights of the petitioner havebeen determined in the order passed by this Court in W.P.No.10626 of2003 as well as the order passed by the second respondent dated28.10.2003.

In view of the above, the respondents are directed to consider thecase of the petitioner for approval of his appointment in the aided post,said to be vacant, by taking into consideration of the strength of studentsavailable in the School during the period 2001-2002 and 2002-2003. Incase the service of the petitioner can be utilized in the very same college as on today, he may be retained subject to after approval of hisappointment in the said post and he may be transferred to any otherschool wherever necessary.

The writ petition is accordingly disposed of. No order as to costs.

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Date: 28.12.2007

C.V.RAMULU,J

DA

THE HON’BLE SRI JUSTICE C.V.RAMULU

28.12.2007

IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESHAT HYDERABAD

THE HON’BLE SRI JUSTICE C.V. RAMULU

W.P.No.6348 of 2005

Date: 28[th] December, 2007

Between:T.Appala Naidu

.. Petitioner

And

The Principal Secretary to Government,Education Department, Secretariat Buildings,Hyderabad and others.

.. Respondents