S. Ratnakumari, v. The Government Of A.P.

H ON'BLE SRI J USTICE GUDISEVA SH YAM PRASAD W RIT PETITION No. 2677 of 20 0 8 ORDER:

Aggrieved by the action of respondents 1 to 5 in not promoting her as Grade-I Hindi Pundit on the ground that the Government has imposed a General Ban on recruitment, except for posts for which permission was specifically granted, the petitioner approached this Court with this writ petition invoking jurisdiction of this Court under Article 226 of the Constitution of India.

2.

Brief facts of the case are that the petitioner was working as Grade II Hindi Pundit in M.N.M. High School. After the retirement of Smt. K. Nagendramma, who was Grade-I Hindi Pundit, the post of Grade-I Hindi Pundit was kept vacant, presumably due to some internal disputes within the Management of the School. The petitioner, along with one B. Suryabhagavanulu, made a representation to the Management of the School requesting to promote them to next higher grade. The Management failed to take steps for promoting the petitioner, and as the disputes within the Management went to the Court, the Deputy Educational Officer, Bapatla, sent proposals dated 06.10.1997 for appointment of Special Officer as there was no Managing Committee in the School due to disputes. The Deputy Educational Officer recommended the

petitioner for promotion as Grade-I Hindi Pundit, along with recommending B. Suryabhagawanulu, for promotion as Head Master. Pursuant to the recommendation of Deputy Education Officer, as there was no Correspondent to look after the School affairs, the 5th respondent-District Educational Officer, vide his proceedings in Rc.No.4756/ B-3/ 96 dated 21.03.2003, directed the Deputy Educational Officer to submit the proposals to the 4th respondent-Regional Joint Director of School Education, Guntur, with regard to the promotion of the petitioner as Grade-I Hindi Pundit. However, since 21.03.2003, the respondents have not taken any steps for promoting the petitioner on the ground that the Government has imposed ban on appointments, promotions in aided schools by Memo dated 20.01.2004. It is the grievance of the petitioner that though the process of promotion in her case was commenced by the 5th respondent long prior to the imposition of ban, she is not promoted stating that there is general ban on appointments and promotions. Hence, the writ petition.

3.

Heard Sri N. Subba Rao, learned counsel for the petitioner, and the learned Government Pleader for Education representing the respondents 1 to 5.

4.

Learned counsel for the petitioner contended that the process of promotion was commenced long back prior to the issuance of ban memo dated 20.10.2004. As such, the ban

memo is not applicable to the case of the petitioner. Reliance is placed on a similar case decided by the Division Bench of this Court, which reads as under:

"We may have delved deep into the issue whether the note dated 19.10.2004 recorded by Prl. Secretary (W & P) and consequential Memo dated 20-10-2004 could be treated as the decision taken in the meeting held on 8-10-2004 under the Chairmanship of the Hon'ble Chief Minister and whether Memo dated 20-10-2004 was issued in accordance with the rules of business framed under Article 166 of the Constitution of India, but in view of our conclusion that the said Memo does not have the effect of satisfying the process of recruitment initiated by the Management of the private schools prior to 20-10-2004."

5.

It is submitted that as per the provisions contained in G.O.Ms. No.1 dated 01.01.1994, in view of the decision in the G.O., obtaining prior permission from the respondents in cases of promotions does not arise. It is further submitted that the Government issued GOMs.No.75 dated 23.09.2002 indicating the procedure for recruitment of vacant aided teaching and non-teaching posts, and the said G.O., was in existence as on the date of submitting the proposal.

6.

Learned Government Pleader for Education argued that the proposal of promotion was forwarded without prior permission. Thereafter, the Government imposed ban on the appointments and promotions and, therefore, the writ petitioner is not entitled to promotion.

7.

There is a procedure in place for recruitments and promotions. On the recommendations of the Deputy Educational Officer with regard to the suitability of promotion of petitioner as Grade-I Hindi Pundit, the 5th respondentDistrict Educational Officer, purportedly due to internal disputes within the Management of the School, has in turn asked the Deputy Educational Officer to submit the proposal to the 4th respondent-Regional Joint Director of School Education, vide proceedings dated 21.03.2003 However, no steps were taken after 21.03.2003 for processing the case of the petitioner for promotion on the ground that the Government has imposed a general ban vide orders dated 20.10.2004 on appointments and promotions. Though the case of the petitioner for promotion was initiated much prior to the issuance of ban order dated 20.10.

2004, the respondents have not taken steps for promotion of the petitioner. In fact, the rights of the petitioner are adversely affected because of the inaction of the respondents. The proposal for promotion of petitioner was sent long prior to the issuance of ban orders. This Court has declared the ban orders as illegal.

8.

It is pertinent to note that this Court, while admitting the writ petition on 12.02.2008 has already granted interim relief to the petitioner. The respondents filed vacate stay petition,

WVMP No.1980 of 2008 and the same was dismissed by this Court vide docket order dated 24.11.2010 which reads as under: "By interim order dated 12.2.2008, this court directed the respondents to take a decision on the proposal dated 27.7.2004 submitted by the sixth respondent school without reference to the Government Memos dated 20.10.2004 and 14.11.2005. To vacate the said order, the respondents 1 to 5 in the writ petition filed WVMP No.1980 of 2010. It is however stated by them that pursuant to the above order, proceedings were issued by the Regional Joint Director of School Education, Guntur in Rc.No.4891/B1/2006 dated 6.10.2009 rejecting the proposal submitted by the sixth respondent school. In that view of the matter, the interim order has already been complied with and there is no need of vacating the same at this stage.

WVMP No.1980 of 2010 is accordingly dismissed." 9.

This Court, in W.P.No.4207 of 2005 and Batch, by Common Order dated 23.08.2013, passed the following: "In this batch of Writ Petitions, the petitioners sought for a direction to the respondents to absorb the petitioners in the aided vacancies in the institutions.

The respondents resisted the request on the ground that there is ban through Government Memo No.12080/COSE/A2/ 2004-4 dated 20.10.2004 and that the absorption or appointment is therefore not permissible. The memo came up for consideration before me in W.P.No.9503 of 2005 and batch; through orders dated 30.7.2013, I set aside the Government Memo dated 20.10.2004. The only objection raised by the respondents regarding the absorption of the petitioners is ban orders. As the ban orders were set aside by the orders of this Court, the petitioners are entitled to be absorbed into aided SGT or School Assistant vacancies or non-teaching positions, as the case may be.

Consequently, this batch of Writ Petitions is allowed. The respondents are directed to consider the case of the petitioners for absorption/appointment either SGTs or

School Assistants, as the case may be, disregarding the Government Memo dated 20.10.2004, within four weeks from the date of receipt of a copy of this order. It is clarified that the same is also applicable to non-teaching staff, who are covered by the Government Memo. No costs. Miscellaneous petitions pending, if any, shall also stand closed."

10.

The Division Bench of this is Court, in W.A.No.1578 of 2005 and Batch, vide order dated 29.12.2006, while dismissing the appeals filed by the Government, observed as under: "In the result, the appeals are dismissed. The writ petitions filed by the management of the private schools and others are allowed. Now, the management of the private schools shall be free to appoint selected candidates and seek approval of such appointments from the competent authority.

The exercise of rationalization undertaken in furtherance of interim order dated 31-10-2005 passed by this Court and directions contained in letter dated 3-112005 issued by the Director of School Education are quashed. However, it is made clear that this order shall not prevent the competent authorities from undertaking fresh exercise for rationalization, which may lead to declaration of certain teachers' surplus and for absorption of such surplus teachers.

Needless to say that any person adversely affected by the fresh exercise to be undertaken by the competent authorities shall be free to challenge the same by availing appropriate legal remedy.

All the miscellaneous petitions are disposed of as infructuous."

11.

Similarly, the Division Bench of this Court, in W.A.M.P. No.663 of 2014 in W.A.No.216 of 2014, passed the following order dated 25.02.2014:

"While considering the interim relief, we are of the view that absolute stay of operation of the impugned judgment and order of the learned trial Judge will not be permissible. The learned trial Judge has prima facie held that the ban imposed by the State is not acceptable under the Constitution. However, this decision is under scrutiny before us.

Therefore, considering the balance of convenience, we feel that the respondent-management will be free to appoint teachers and for this purpose, temporary permission must be granted within seven days from the date of receipt of this order. This factum of granting permission should not be given any weightage or advantage in favour of the respondent at the time of hearing of the appeal. Everything will abide by the result of the appeal. Once the permission granted, the respondent-management will be free to appoint teachers in accordance with the rules and for the time being, the salary of the teachers shall be borne by the management. It shall also be notified to the appointees that this appointment will be subject to the result of the appeal.

We pass this order keeping in view the interests of the students at large. In the event, this appeal fails and the judgment and order of the learned trial Judge is upheld, then the appellants shall pay grant-in-aid as permissible under the Rules with interest at 9% per annum from the date of passing of the judgment of the learned trial Judge. All points are kept open."

12.

In the Special Leave to Appeal (C) Nos.28430-28435 of 2014 filed by the Government of A.P., against the order dated 18.09.2014 in WA No.925 of 2014, the Hon'ble Supreme Court passed the following order on 14.09.2015:

"The High Court has protected the interest of the State by making it clear that the appointments, if any, are to be made subject to the final result of the appeals pending before the High Court. The High Court has also clarified that for the time being the salary being paid to them shall also be subject to the final outcome of the appeals.

We do not find any merit in these special leave petitions which are accordingly dismissed."

13.

In view of the foregoing reasons, considering the merits of the writ petition, the writ petition is liable to be allowed. 14.

In the result, the writ petition is allowed, directing the respondents to accept the proposal of promotion of the petitioner and issue appropriate orders.

No costs.

Miscellaneous petitions, if any pending, shall stand closed. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ GUDISEVA SH YAM PRASAD, J 24th April, 2017 KSM

H ON'BLE SRI J USTICE GUDISEVA SH YAM PRASAD W RIT PETITION No. 2677 of 20 0 8 24 th Ap r il, 20 17 KSM