Director of Collegiate Education, dated 30.01.2015 and 20.11.2015, declining to appoint the writ petitionersappellants herein as Lecturers in Mathematics and English against the aided vacancies.
IN THE HIGH COURT OF ANDHRA PRADESH
****
WRIT APPEAL Nos.864 & 873 of 2021
W.A.No.864 of 2021
Between:
R.Vijaya Daniel.
…. Appellant
AND
The State of Andhra Pradesh,
Rep.by its Principal Secretary
(Higher Education Department),
Secretariat Buildings, Velagapudi,
Amaravathi & 3 others.
…. Respondents
W.A.No.873 of 2021
Between:
B.Vani Grace.
…. Appellant
AND
The State of Andhra Pradesh,
Rep.by its Principal Secretary
(Higher Education Department),
Secretariat Buildings, Velagapudi,
Amaravathi & 3 others.
…. Respondents
DATE OF JUDGMENT PRONOUNCED: 06.01.2023
2023:APHC:1938
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W.A.Nos.864 & 873 of 2021
SUBMITTED FOR APPROVAL:
THE HON’BLE SRI JUSTICE A.V. SESHA SAI
&
THE HON’BLE SRI JUSTICE DUPPALA VENKATA RAMANA
1. Whether Reporters of Local Newspapers
may be allowed to see the judgment? Yes / No
2. Whether the copies of judgment may be
marked to Law Reporters /Journals? Yes / No
3. Whether His Lordship wish to
see the fair copy of the Judgment? Yes / No
___________________
A.V. SESHA SAI, J
_________________________________
DUPPALA VENKATA RAMANA,J
2023:APHC:1938
3
AVSS,J & DVR,J
W.A.Nos.864 & 873 of 2021
* THE HON’BLE SRI JUSTICE A.V. SESHA SAI
&
*THE HON’BLE SRI JUSTICE DUPPALA VENKATA RAMANA
+ WRIT APPEAL Nos.864 & 873 of 2021
% 06.01.2023
W.A.No.864 of 2021
Between:
R.Vijaya Daniel.
…. Appellant
AND
The State of Andhra Pradesh,
Rep.by its Principal Secretary
(Higher Education Department),
Secretariat Buildings, Velagapudi,
Amaravathi & 3 others.
…. Respondents
W.A.No.873 of 2021
Between:
B.Vani Grace.
…. Appellant
AND
The State of Andhra Pradesh,
Rep.by its Principal Secretary
(Higher Education Department),
Secretariat Buildings, Velagapudi,
Amaravathi & 3 others.
…. Respondents
2023:APHC:1938
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! Counsel for Appellant : Sri G.Elisha
^ Counsel for Respondents : Sri K.V.Raghuveer
< Gist:
> Head Note:
? Cases referred:
1.(2009) 5 SCC 65
2. (2011) 3 SCC 436
2023:APHC:1938
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W.A.Nos.864 & 873 of 2021
THE HON’BLE SRI JUSTICE A.V. SESHA SAI
&
THE HON’BLE SRI JUSTICE DUPPALA VENKATA RAMANA
WRIT APPEAL Nos.864 & 873 OF 2021
COMMON ORDER:(per Hon’ble Sri A.V. Sesha Sai, J)
Since these two Letters Patent Appeals arise from a
common order, and as the issues are the same, this Court
deems it appropriate to hear and dispose of these cases by
way of this common order.
2. Writ Appeal No.864 of 2021 arises from
W.P.No.10253 of 2019 and W.A.No.873 of 2022 arises from
W.P.No.10252 of 2019.
3. By way of the impugned common order, dated
08.10.2021, the learned single Judge dismissed the Writ
Petitions. The said orders passed by the learned single
Judge are under challenge in these Appeals, preferred
under Clause 15 of the Letters Patent by the unsuccessful
writ petitioners.
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4. Heard Sri P.Gangaiah Naidu, learned Senior Counsel,
representing Sri G.Elisha, learned counsel for the writ
petitioners-appellants herein, and Sri K.V.Raghuveer,
learned Government Pleader for Education, for the
respondents, apart from perusing the entire material
available on record.
5. Learned Senior Counsel for the appellants contends
that the impugned common order passed by the learned
single Judge is highly erroneous, contrary to law and is a
result of non-consideration of the material available on
record. It is further contended by the learned Senior
Counsel that the reasons assigned by the learned single
Judge in the impugned order are neither sustainable nor
tenable in the eye of law; that the orders passed in similar
Writ Petitions attained finality, as such, the learned single
Judge grossly erred in permitting the respondents to
canvass the issues which were already gone into in the
earlier Writ Petitions filed by the similarly situated
individuals.
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6. On the contrary, Sri K.V.Raghuveer, learned
Government Pleader for Education, strongly supporting the
impugned orders, contends that there is no error nor there
exists any infirmity in the impugned orders passed by the
learned single Judge, as such, the said orders do not
warrant any interference of this Court under Clause 15 of
the Letters Patent; that the respondents filed counteraffidavit, raising a number of objections which disentitle
the writ petitioners from claiming the relief sought in the
Writ Petitions. It is further contended that the contention
of the learned Senior Counsel appearing for the writ
appellants that it would not be open for the respondents to
deny the claim of the writ petitioners, having regard to the
earlier orders, is neither sustainable nor tenable. In
support of his contentions, learned Government Pleader
places reliance on the following judgments:
1. (2009) 5 SCC 65
2. (2011) 3 SCC 436
7. In the above background, now the issues that emerge
for consideration and adjudication are as infra:
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1) Whether the order passed by the learned
single Judge, having regard to the facts and
circumstances of the case, is sustainable and
tenable?
2) Whether the writ petitioners-appellants herein
are entitled for any relief from this Court?
8. Appellants herein filed the aforementioned Writ
Petitions, assailing the orders passed by the Commissioner
and Director of Collegiate Education, dated 30.01.2015
and 20.11.2015, declining to appoint the writ petitionersappellants herein as Lecturers in Mathematics and English
against the aided vacancies. After receipt of the notices,
respondents in the Writ Petitions contested the matters by
filing counter-affidavits. Eventually, as stated supra, the
Writ Petitions came to be dismissed by the learned single
Judge vide the orders impugned in the present Writ
Appeals.
9. The essence of the case of the appellants, as
advocated by the learned Senior Counsel, is that the
learned single Judge ought not to have permitted the
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respondent authorities to re-agitate all the issues which
attained finality in a number of earlier Writ Petitions.
10. On the contrary, the sum and substance of the case
of the respondents is that the issues, which were raised
and discussed in the present Writ Petitions, were not at all
raised and considered in the earlier Writ Petitions. In order
to consider and adjudicate the issues raised in these Writ
Appeals, it would be highly essential and apposite to refer
to various earlier orders of this Court and the Hon’ble Apex
Court.
11. Similarly situated Lecturer in Botany, in the same
respondent-college, filed W.P.No.20036 of 2003 for a
direction to admit her to grant-in-aid vacancy with effect
from 01.02.2001 i.e., the date on which the aided vacancy
arose. A copy of the said order passed by the learned single
Judge of the composite High Court of A.P. is placed on
record along with the present Writ Appeals. A perusal of
the said order, in clear and unequivocal terms, reveals that
same objections were raised by the authorities in the said
Writ Petition also. However, the learned single Judge of the
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W.A.Nos.864 & 873 of 2021
composite High Court of A.P., turned down the objections
of the authorities and allowed the Writ Petition vide order,
dated 30.10.2013. In this context, it may be appropriate to
extract certain paragraphs of the said judgment, which
read as under:
“The respondents contended that the
petitioner cannot be absorbed in the aided
vacancy, on various grounds. They raised a
contention in the counter that permission from
competent authority before making appointment
to the unaided posts was not obtained by the
4th respondent and that the very appointment
consequently is bad.
The respondent further contended that the
petitioner is a lecturer in Microbiology while the
vacancy, which arose in Botany and that the
petitioner consequently is not eligible for
absorption as lecturer in Botany in the aided
vacancy. The respondents urged that there was
no Government Nominee in the Selection
Committee and that the selection of the
petitioner into an unaided vacancy
consequently is not sustainable. Finally they
pleaded that there was a ban on the
recruitment so much so the request of the 4th
respondent to absorb the petitioner in the aided
vacancy is not permissible.
It is made clear that the petitioner is a Post
Graduate in Botany and also did Ph.D. The
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question is whether the petitioner is eligible to
teach Microbiology and whether petitioner can
be absorbed as a lecturer in Botany. Botany is
the basic course that the petitioner has
undergone. Consequently, the defence of the
respondent that the petitioner was initially
selected as Microbiology and cannot be
absorbed as a lecturer in Botany cannot be
sustained.
Admittedly, Government Nominee did not
participate in the Selection Process, which is
evident from the minutes of the Appointment
Committee dated 12.8.1995. In W.P.No.9441 of
2005 dated 26.2.2010, this question was
considered by a learned Single Judge of this
Court. Inter alia, it was pointed out that for
Minority Educational Institutions, candidates
can be selected on the basis of Selection
Committee, wherein the Government Nominee
has not participated in view of G.O.Ms.No.23,
Minorities Welfare (M&R) Department dated
10.3.1999. The 4th respondent is a Minority
Educational Institution. In view of the
observations in W.P.No.9441 of 2005, it is clear
that Minority Educational Institutions can
proceed with the selection of unaided posts
constituting a Committee without including a
Government Nominee in the Selection
Committee. Consequently the contention of the
respondents that there was no Government
nominee in the Selection Committee and that the
2023:APHC:1938
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W.A.Nos.864 & 873 of 2021
very selection of the petitioner in the unaided
post is invalid is not sustainable.
It is also contended by the Government that
permission was not obtained from the
competent authority prior to filling up the
vacancies. Once again, so far as minority
institutions are concerned, the very permission
contemplated by G.O.Ms.No.12 dated 10.1.1992
is in respect of aided posts and not in respect of
unaided posts. Further, G.O.Ms.No.23 already
referred to grants exemptions in respect of
Minority Educational Institutions. Consequently,
the contention of the respondents that prior
permission of the competent authority was not
obtained before filling up the unaided posts and
that such a candidate cannot be absorbed in an
aided vacancy is not sustainable.
The further ground urged by the Government
is that there is a ban in respect of recruitment.
The leaned Senior Counsel for the petitioner
submitted that despite ban, several lecturers
were absorbed into aided vacancies after the
imposition of ban. The ban was imposed on
17.12.1999. However, the remaining lecturers
selected along with the petitioner had been
absorbed into aided vacancies. As can be seen
from the orders dated 23.12.2000 issued by the
second respondent, Smt.N.Vidyullatha Devi was
absorbed as lecturer in Zoology into the aided
vacancy. She was selected along with the
petitioner. Proceedings dated 29.12.2000
issued by the second respondent show that 4
2023:APHC:1938
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other persons, who were initially selected along
with the petitioner were subsequently absorbed
into aided vacancies. The respondents cannot
adopt pick and choose method accepting the
case of some of the unaided lecturers for being
absorbed into the aided vacancy and deny the
same benefit to the petitioner on the ground of
ban. Consequently, the defence that in view of
ban, the petitioner cannot be absorbed into the
aided vacancy is not sustainable.
Viewed by any angle, the refusal of the
respondents to absorb the petitioner into an
aided vacancy in Botany is not sustainable.
Consequently, the respondents 1 to 3 are
directed to accord permission to the 4th
respondent to absorb the petitioner in the aided
vacancy of the lecturer in Botany with effect
from 1.2.2001 granting such permission within
four weeks from the date of receipt of a copy of
this order.
Accordingly, the Writ Petition is allowed. No
costs. Miscellaneous petitions, pending if any in
this Writ Petition shall stand closed”.
12. It is also not in controversy that, by way of
G.O.Ms.No.3, Higher Education (CE) Department, dated
10.01.2018, the State Government implemented the above
mentioned order.
2023:APHC:1938
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W.A.Nos.864 & 873 of 2021
13. Earlier, similarly situated Lecturers filed
W.P.No.9441 of 2005 and in the said Writ Petition also
same objections were taken by the respondent authorities,
but the learned single Judge of the composite High Court
of A.P. allowed the Writ Petition vide order, dated
26.02.2010, turning down the said objections of the
authorities. It is also significant to note that, assailing the
aforesaid order, the respondent authorities carried the
matter by way of Intra-Court Appeal vide W.A.No.851 of
2010 and the Division Bench of the composite High Court
of A.P. vide order, dated 15.02.2012, dismissed the said
Writ Appeal.
14. As against the said order passed by the Division
Bench in W.A.No.851 of 2010, Special Leave to Appeal vide
C.C.No.19308 of 2012 was filed by the Department and the
Hon’ble Apex Court vide order, dated 27.09.2013,
dismissed the said Special Leave to Appeal. Operative
portion of the said order reads as follows:
“We have heard learned counsel for the
parties and carefully perused the record.
2023:APHC:1938
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W.A.Nos.864 & 873 of 2021
We are in complete agreement with the
learned single Judge and the Division
Bench of the High Court that the reasons
put forward by the petitioners for refusing
to consider the case of respondent No.1
for grant of approval were legally
unsustainable.
We also do not find any error in the
direction given by the learned single Judge
to the petitioners to reconsider the case of
respondent No.1 for regularisation of her
service and for absorption against the
aided post of Junior Lecturer (Maths) in the
service of respondent No.2 with effect from
09.12.1994 and to give her all
consequential benefits. The learned single
Judge gave these directions because in the
case of Mohd.Ayazuddin, the department
had accorded approval for his absorption
despite the fact that he was appointed in
the same manner in which respondent
No.1 had been appointed”.
15. Subsequently, the State Government vide
G.O.Ms.No.16, Higher Education (I.E.II) Department, dated
12.03.2012, implemented the order passed by the learned
single Judge of the composite High Court of A.P., in
W.P.No.9441 of 2005, dated 26.02.2010, as confirmed by
the Hon’ble Apex Court.
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W.A.Nos.864 & 873 of 2021
16. It is also significant to note that vide common order,
dated 20.12.2018, W.P.No.7789 of 2012 & batch was
allowed, while referring to similar orders of absorption of
identically placed individuals. Paragraph Nos.20, 21 and
22 of the said common order read as follows:
“20. As rightly contended by the counsel for
petitioners, when the State itself had absorbed
similarly situated persons like the Writ
Petitioners into grant in aid posts on its own
and also pursuant to orders passed by this
Court, it cannot be contended that petitioners
have to be treated on a different footing and
they should be denied consideration for
absorption in the grant in aid vacancies in the
respective subjects existing in the private
managements where the respective petitioners
are working.
21. Therefore, all these Writ Petitions are
allowed. The orders rejecting absorption in
aided posts passed by the Commissioner and
Directorate of Collegiate Education, Andhra
Pradesh in the case of the petitioners are set
aside; and the State of Andhra Pradesh and the
Commissioner of Collegiate Education are
directed to absorb the petitioners in the aided
posts of Lecturers in the respective private
Managements with all consequential benefits.
22. Accordingly, the Writ Petitions are allowed
as above. No order as to costs”
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W.A.Nos.864 & 873 of 2021
17. As against the above orders, W.A.No.263 of 2019 &
batch came to be preferred and a Division Bench vide
order, dated 31.01.2020, dismissed the said Writ Appeals.
The said orders passed by the Division Bench were carried
to the Hon’ble Apex Court by way of
S.L.P.(C)No.13575/2020 and the Hon’ble Apex Court vide
order, dated 25.11.2020, dismissed the said petition. It is
also not in controversy that the Review Petition filed vide
Diary No.31/2021 in the aforementioned
S.L.P(C).No.13775/2020 also came to be dismissed by the
Hon’ble Apex Court vide order, dated 03.02.2021. A copy
of the said Review Petition filed before the Hon’ble Apex
Court is placed on record along with the present Writ
Appeals as a material paper. In this context, it would be
highly essential and appropriate to extract Grounds R, S,
T & W of the Review Petition, which read as under:
“R. BECAUSE the Hon’ble High Court
erred in nothing that there is not law
existing conferring such benefits on the
employees of Private Educational
Institutions. In fact, as early as on
03.11.1999, the Government issued a
G.O.283 [Page 121 of SLP Paper-book],
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W.A.Nos.864 & 873 of 2021
whereby all previous G.O.s, which
provided a right of regularization /
absorption to such employees were
withdrawn once and for all.
Consequently, no law of regulation exists
that confers such a right upon such
Lecturers.
S. BECAUSE the Hon’ble High Court
erred in not nothing that, Andhra
Pradesh Regulation of Appointments
to Public Services and Rationalisation
Of Staff Pattern And Pay Structure
Act, 1994 categorically forbids such
regularization. The said provision reads as
under:
“7. No person who is daily wage employee
and no person who is appointed on a
temporary basis under section 3 and is
continuing as such at the commencement
of this Act shall have or shall be deemed
ever to have a right to claim for
regularization of services on any
ground whatsoever and the services of
such person shall be liable to be
terminated at any time without any notice
and without assigning any reasons.”
The aforesaid Act is applicable to all
services defined as ‘Public Services’ under
Section 2 (vi) (e) of the Act which reads as
under:
“(e) any other body established by the
State Government or by a Society
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W.A.Nos.864 & 873 of 2021
registered under any law relating to the
registration or societies for the time being
in force, and receiving funds from the State
Government either fully or partly for its
maintenance or any educational institution
whether registered or not but receiving
aid from the Government.”
T. It is thus clear that there is a categorical
bar to regularization. This aspect has not
been considered by the Hon’ble Court.
W. The Hon’ble High Court erred in not
appreciating that none of the previous
judgments relied upon by the Hon’ble High
Court have referred to (much less
considered) the effect of G.O.Ms.No.283
dated 03.11.1999 [Page 121 of SLP
Paper-book] whereby all previous
Government’s Orders prescribing for
regularization of Lecturers to Aided
Posts were rescinded. As on date,
there is no law, whatsoever, that
confers any right upon the Lecturers,
to claim regularization/absorption”.
18. The fact remains that the respondents categorically
took all the objections in the earlier Writ Petitions,
however, as mentioned supra, the Writ Petitions were
allowed. In the present cases also the same grounds, which
were taken in the Review Application filed before the
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W.A.Nos.864 & 873 of 2021
Hon’ble Apex Court, as mentioned supra, are sought to be
pressed into service by the respondents. It is not at all the
case of the respondents that, in respect of the individuals
whose services were already regularised by the
Government, there were no such objections.
19. Request for repeated adjudication of the issues,
pertaining to similarly situated persons on the ground that
there are new grounds for denying the relief is not
permissible. In the considered opinion of this Court, the
same would create two different sub-Clauses in one Class,
which ultimately offends Article 14 of the Constitution of
India. As mentioned supra, the objections now sought to be
pressed into service were also available in the earlier cases
and also in the cases where the Government on its own
extended the benefit to the similarly situated persons. No
plausible explanation is forthcoming as to why the present
objections were overlooked and did not come in the way of
the respondents, while considering the similarly situated
persons. In the considered view of this Court, if the
contentions of the respondents are permitted and accepted,
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W.A.Nos.864 & 873 of 2021
there cannot be finality for any issue and it may continue
as a never ending issue which would eventually frustrate
and defeat the very object of the adjudication and the
concept of finality. The contention of the learned
Government Pleader that, in the event of considering the
request of the writ petitioners-appellants herein positively,
the same would amount to perpetuating illegality, in the
considered opinion of this Court, cannot stand for judicial
scrutiny, having regard to the earlier orders of this Court
and the orders of the Hon’ble Apex Court, including the
order in the Review Application (referred to supra), filed by
the authorities, raising the same grounds.
20. Having regard to the factual situation and the orders
passed by the Hon’ble Apex Court in the Review
Application, referred to supra, the judgements cited by the
learned Government Pleader would not render any
assistance to the case of the respondent authorities.
21. For the aforesaid reasons, Writ Appeals are allowed,
setting aside the order, dated 08.10.2021, passed by the
learned single Judge in W.P.Nos.10252 and 10253 of 2019
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and, consequently, Writ Petitions are allowed as prayed for.
There shall be no order as to costs.
Miscellaneous petitions, if any, pending in these
cases, shall stand closed.
___________________
A.V. SESHA SAI, J
______________________________
DUPPALA VENKATA RAMANA
06th January, 2023.
Tsy
2023:APHC:1938
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