WP/10740/2005 of K. Srinivasa Rao, Vs Government of A.P., rep. by its Secretary, on 31 December 2013

Order:

The petitioner is a Secondary Grade Teacher (SGT,for short) in Aided Elementary School [K.Subrahmanyam(for short, KS)] under the management of the 3[rd] respondent. The 3[rd] respondent submitted proposalfor approving the appointment of the petitioner as SGT inthe 3[rd] respondent-School. The petitioner consequentlyseeks for a Writ of mandamus to declare the inaction of the 2[nd] respondent-District Educational Officer, Guntur(DEO, for short) in not approving his appointment and todirect the 2[nd] respondent-DEO to sanction stipend as wellas salary from the date of his appointment as SecondaryGrade Apprentice and also to regularize the services ofthe petitioner.

2. There is any amount of correspondence betweenthe 2[nd] respondent-DEO and the 3[rd] respondent-Schoolin connection with the appointment of the petitioner.

I may point out at the outset that it is the 3[rd] respondent-School which fought tooth and nail for the regularization ofthe appointment of the petitioner as SGT for the reasonthat the petitioner is no other than the son of the 3[rd] respondent, who is the Manager and Correspondentof the School.

3. The events that led to the present writ petition arequite abnormal. Sri K.Subrahmanyam started PrivateManagement Aided Elementary School (KS) with HigherGrade Teacher qualification in 1940. The Schoolreceived aid from the 2[nd] respondent-DEO with effect from1941 through proceedings dated 20-3-1941.

On 27-6-1988, the rights of the management andcorrespondenceship were allegedly transferred to the 3[rd] respondent, who is the eldest son of the founder-K.Subrahmanyam. The 3[rd] respondent claims that the entrustment of management and correspondenceship tothe 3[rd] respondent was after the consent by all the sons ofK.Subrahmanyam including Sri K.L.Kantha Rao, theyoungest son who was working as a teacher in the AidedUpper Primary School, Vellatoor. On 07-4-1993, the 2[nd] respondent-DEO passed orders entrusting thecorrespondenceship of the Institute to Sri K.L.KanthaRao.

4. Challenging the entrustment of thecorrespondenceship to Sri K.L.Kantha Rao by the 2[nd] respondent-DEO, the 3[rd] respondent preferredW.P.No.7773 of 1993 before this Court. Through ordersdated 14-4-1995, the 2[nd] respondent-DEO was directed to issue orders in accordance with law.

The 2[nd] respondent-DEO once again passed orders on 14-8-1997 appointing Sri K.L.Kantha Rao asCorrespondent (Manager) of the Institute. Aggrieved bythese orders, the 3[rd] respondent once again filedW.P.No.21601 of 1997.

5. While things stood thus, the 2[nd] respondent-DEOundertook exercise of filling up 3 vacant SGT posts inFebruary, 2000. The vacancies arose on account ofretirement of 3 teachers. The 3[rd] respondent approachedthis Court once again through W.P.No.3429 of 2000. Interim directions were issued on 03-3-2000 in W.P.M.P.

No.4501 of 2000 permitting the selection process to goahead with the condition that the appointments so madeshould be subject to orders in W.P.Nos.21601 of 1997and 3429 of 2000.

6. The petitioner appeared for the writtenexamination and oral interview conducted on 14-3-2000for the recruitment of 3 vacant SGT posts. The petitionermade a claim as a non-local BC-B candidate.

The petitioner also claimed that he has additionalqualification in Computers. Sri K.L.Kantha Rao, asCorrespondent and Manager issued orders on 23-3-2000appointing 3 teachers at roster points 1, 2 and 3, subjectto the result of W.P.Nos.21601 of 1997 and 3429 of 2000. The 3[rd] respondent claimed that roster points 1, 3, 5 and 9to 13 were filled up on 09-01-1994 in terms ofG.O.Ms.No.1, Education, dated 01-01-1994 [AndhraPradesh Educational Institutions (Establishment,Recognition, Administration and Control of Schools underPrivate Managements) Rules, 1993] (1993 Rules, forshort). It is also the contention of the 3[rd] respondent thatas roster points 1 and 3 had already been filled up, fillingup of roster points 1 and 3 along with roster point No.2once again through proceedings dated 23-3-2000 isincorrect and is violative of Andhra Pradesh State andSubordinate Service Rules.

7. The High Court disposed of W.P.Nos.21601 of 1997 and 3429 of 2000 through common order dated 11-9-2000, entrusted the management of the Institute tothe 3[rd] respondent with a condition that the 3[rd] respondent shall constitute a Governing Body inaccordance with Rule 15 of 1993 Rules. The appealtherefrom in W.A.No.1467 of 2000 confirmed the orders inW.P.No.21601 of 1997 through orders dated 27-11-2000.

8. The 3[rd] respondent contended that the posts of 3 teachers fell vacant in June, 2001. However, the 2[nd] respondent-DEO passed orders on 27-10-2001shifting the 5 teachers along with their posts from 01-11-2001 to the Zilla Parishad High School.

The 3[rd] respondent thus primarily contended that thevacancies were meant for roster points 2, 4 and 6 but not1, 2 and 3.

9. The respondents 1 and 2, on the other hand,claimed that the 3 roster points are roster points 1, 2 and 3meant for OC-Women, SC-Women and OC-Generalrespectively. The 1[st] respondent submitted that thepetitioner being the BC-B candidate, he is eligible forconsideration in the 3[rd] roster point meant for OC-General. It is also urged that Sri B.Sridhar wasselected as OC candidate as he secured 76 marks whilethe petitioner secured only 62 marks, so much so, he became ineligible for selection.

10. As already pointed out, the main contest isbetween the 3[rd] respondent-School and the 2[nd] respondent-DEO. Albeit the petitioner is not a mutespectator, his participation in this legal battle is quitesubdued. Indeed, the petitioner submitted that the failureof the 2[nd] respondent-DEO to approve his appointment interms of the recommendation of the 3[rd] respondent is unjust. It may be noticed that theconflict between the 3[rd] respondent and his brother Sri K.L.Kantha Rao is irrelevant for the purpose of thepresent enquiry. It is evident that the 3[rd] respondent is thepresent Correspondent and Manager of the Institutestarted by his father.

11. The petitioner as well as the 3[rd] respondentcontended that the petitioner was regularly selected bythe Selection Committee constituted by the 3[rd] respondent and that as the petitioner becamesuccessful in the written examination and oral interview,the petitioner joined the 3[rd] respondent-Institute on 15-4-2002. The 3[rd] respondent admittedly sent proposals

to the 2[nd] respondent-DEO. The petitioner figured atserial No.9 in the interview. He secured 61 marks. He is a B.Sc., B.Ed. He belongs to BC-B group and is a non-local candidate as he is said to be a local candidate of Nalgonda District according to the Andhra PradeshPublic Employment (Organisation of Local Cadres andRegulation of Direct Recruitment) Order, 1975 (thePresidential Order, for short). It is his grouse that despitethe fact that the petitioner was duly selected within 20%quota of non-local candidates in the posts reserved forBC-B candidates, the 2[nd] respondent-DEO has not beenaccording sanction and has not been releasing grant.

12. The learned counsel for the 3[rd] respondentpointed out that the School possessed 8 aided SGTposts. Curiously, the 2[nd] respondent-DEO contended thatthere were only 3 aided posts and that all the 3 wereappointed, so much so, the petitioner cannot beaccommodated.

13. It is the case of the 2[nd] respondent-DEO that the posts of the 3 SGTs fell vacant in 2000.

The 3[rd] respondent, on the other hand, contended thatthe posts fell vacant in 1996 and 1998 on the retirement ofSarvasri M.Krishna Murthy, B.Rajagopala Rao andN.Ramakrishna Rao on 31-5-1996, 31-7-1996 and 30-6-1998 respectively. The 3[rd] respondent furthersubmitted that the appointments were in terms of 1993Rules.

14. Rule 12 of 1993 Rules deals with the method ofappointment of staff members. Rule 12(6) of 1993 Rules ordains maintenance of communal roster. It is the case ofthe 3[rd] respondent that there were as many as 8 SGTaided posts in the Institute by the date 1993 Rules cameinto force through G.O.Ms.No.1 on 01-01-1994necessitating the 3[rd] respondent to reschedule the 8 SGTs in the roster points in terms of Rule 12(6) of 1993Rules. It would appear that the 3[rd] respondent hascompleted the exercise accordingly and informed the 2[nd] respondent-DEO.

15. Out of the 8 working SGTs, 7 belonged to OC category and one belonged to BC-B category. Their placement was accordingly communicated to thecompetent authority.

16. As already noticed, there was a disputeregarding the management of the School between the 3[rd] respondent and his younger brother K.L.Kantha Rao. The petitioner has nothing to do with this dispute nor canhe show any interest in the dispute between the 3[rd] respondent and his younger brother K.L.Kantha Rao. It is true that the petitioner is no other than the son of the3[rd] respondent. However, in his capacity as an SGT, hehas nothing to do with the conflict between his father andhis junior paternal uncle. As far as he is concerned, theonly question is whether his appointment was inaccordance with the Rules or otherwise.

17. The basic claim is that the younger brother of the3[rd] respondent filled up the 3 posts as roster points 1, 2and 3. There is no dispute about this proposition.

The 3[rd] respondent, however, contended that rosterpoints 1 and 3 had already been filled up, so much so,roster points 2, 4 and 6 were to be filled up. It is his casethat the petitioner was selected at roster point No.4 as BC-B non-local candidate as against OC-General vacancy.

18. Government does not appear to be clear in thiscontext as to how the selection of the petitioner wasincorrect. Government, however, raised a contention thatas many as 5 teachers were shifted along with their postson the ground that there was no strength in the School runby the 3[rd] respondent to maintain the pupil-teacher ratio. Where the very appointment of 3 persons by the youngerbrother of the 3[rd] respondent was disputed and more orless confirmed by the High Court by placing themanagement at the disposal of the 3[rd] respondent, the very selection of the 3 candidates isliable to be set aside as bad. More important, the transferof 5 of the teachers together with their posts as anincidence of rationalization does not appear to bereasonable. No notice was given to the 3[rd] respondentnor was the consent of the 3rd respondent obtainedbefore shifting the 5 posts together with the incumbents.

The contention of Sri J.Ugra Narasimha, learned counselfor the 3[rd] respondent that the transfer of the 5 teachers tothe Zilla Parishad High Schools through orders dated 27-10-2001 is improper is certainly justified since nojustification is given by the 2[nd] respondent-DEO fortransferring the posts.

19. So far as filling up of the posts in response to theNotification dated 25-02-2000 by the younger brother ofthe 3[rd] respondent is concerned, the Notification wouldappear to be in terms of G.O.Ms.No.76, Education(SE/PS-1) Department, dated 02-11-1999, under whichcommunal roster was introduced in Rule 12 of 1993Rules. The learned Assistant Government Pleadersubmitted that G.O.Ms.No.76, dated 02-11-1999 wasstruck down by the Supreme Court as invalid.

In any view of the matter, where roster points 1 and 3 hadalready been filled up, fresh Notification to fill up rosterpoints 1 and 3 again along with roster point No.2 does notarise. It is also clear that the Andhra Pradesh EducationAct, 1982 was subsequently amended introducing theRule of Reservation as provided by the Andhra PradeshState and Subordinate Service Rules. Thus, theCommunal Roster Points Scheme stood revived in 1993Rules. Admittedly, roster points 1, 2 and 3 are for OC-Women, SC-Women and OC-General whereas rosterpoints 4 and 6 are for BC-B and OC-General. Initially, Smt. Y.Manikyala Devi, Smt. K.Vijaya Prasanna and SriB.Sridhar were selected for roster points 1, 2 and 3. Inview of Rule 12(9) of 1993 Rules, such appointments inviolation of Rule 12(9) of 1993 Rules became invalid.

20. After the 3[rd] respondent took over themanagement, the 3[rd] respondent issued Notices to theappointees under roster points 1, 2 and 3.

He subsequently terminated their services and informedthe 2[nd] respondent-DEO. None of the 3 teachers agitatedover their termination.

21. As the 3 teachers were thus terminated, whenthe 5 posts were transferred to Zilla Parishad HighSchools, the 3[rd] respondent had no alternative but torelieve 2 of the teachers only. The question of relievingthe remaining 3 teachers did not arise as their serviceshad already been terminated.

22. The 4[th] vacancy in the cycle would appear to bebelonging to BC-B in view of Rule 22(f)(i) of the AndhraPradesh State and Subordinate Service Rules. Considering that the petitioner also held Computer skills,the 3[rd] respondent claims that he has chosen thepetitioner. Obviously, the petitioner would be preferred toany other candidate as he is no other than the son of theCorrespondent. The 3[rd] respondent, however, is trying to

justify the selection of the petitioner on the ground that thepetitioner held prowess in Computers. The petitionerjoined the services of the School on 15-4-2002.

23. On 29-5-2002, the 2[nd] respondent-DEO issued a direction to the 3[rd] respondent to relieve the petitionerfrom services. The 3[rd] respondent issued a detailedreply. Where the ban of appointment of teachers was setaside through orders in W.P.No.9503 of 2005 and batchby me, on 30-7-2013, the 2[nd] respondent-DEO cannotclaim that the appointment of the petitioner was againstthe Rules.

24. Again I would venture to repeat that the basiccontroversy is whether roster points 1, 2 and 3 areavailable for appointment or roster points 2, 4 and 6. As roster points 1 and 3 were already filled up, rosterpoints 2, 4 and 6 alone are available for appointment. Theselection of the petitioner as against roster point No.4,therefore, is quite justified. The refusal of the 2[nd] respondent-DEO to accept the appointment of thepetitioner and refusing to release the grant is totally unjustand illegal. In this background, the petitioner is certainlyentitled to the reliefs sought for by him.

25. Accordingly, this writ petition is allowed.

The respondents 1 and 2 are directed to approve the appointment of the petitioner as an SGT in the 3[rd] respondent’s School and release necessary stipendand salary as SGT Apprentice and regular SGT within a period of 4 (four) weeks from the date of receipt of a copy of this order. The miscellaneous petitions pending,if any, shall stand closed. No costs.

31[st] December, 2013.Ak

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Dr. K.G.SHANKAR, J.

31[st] December, 2013.(Ak)