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High Court for State of TelanganaWP/13040/2015disposed of no costs

R.Durga Devi v. The State Of Telangana, Rep. By Its Secretary,

2016-06-28A Ramalingeswara Rao5 pages

HON'BLE SRI JUSTICE A. RAMALINGESWARA RAO Writ Petition Nos. 36800 of 2013 and 13040 of 2015 and Contempt Case No.232 of 2014 Common Order:

These two Writ Petitions along with the Contempt Case No.232 of 2014 are being disposed of by this common order as they arise out of the same cause of action.

2. W.P.No.36800 of 2013 was filed by the present Incharge Headmistress who was working as School Assistant (Telugu) in the fifth respondent-School challenging the order of promotion in favour of the sixth respondent dated 10.09.2013. The case of the petitioner is that she was appointed as School Assistant (Telugu) in the fifth respondent-School on 17.08.1979, whereas the sixth respondent was appointed as Secondary Grade Teacher (Social) on 25.02.1977. The sixth respondent was promoted as School Assistant on 25.11.1988. Thus, the sixth respondent is junior to the petitioner. The post of School Assistant is the feeder cadre for promotion to the post of Headmistress. As per G.O.Ms.No.167, dated 09.03.1984, one has to pass HM Accounts Test apart from holding an academic degree plus B.Ed. The Government ultimately issued G.O.Ms.No.9, dated 23.

01.2009, providing service rules for the posts of Headmasters Grade-II (Gazetted) in Government Schools in Andhra Pradesh. However, in respect of Aided Schools the rules issued in G.O.Ms.No.167, dated 09.03.1984, continued to operate. When the previous Headmistress retired on superannuation, the petitioner was appointed as Incharge Headmistress vide orders dated 01.05.2013. A provisional seniority list of School Assistants was prepared and the name of the petitioner was shown at Sl.No.1 and the name of the sixth respondent was shown at Sl.No.2. However, the second respondent issued proceedings on 19.08.2013 directing all the Regional Joint Directors of School Education to follow G.O.Ms.No.

09.03.1984, in order to effect promotions to the post of Head Masters in Aided Schools. Since the petitioner did not pass the departmental test and the sixth respondent passed the same she was given promotion by the third respondent by proceedings dated 10.09.2013. The petitioner submitted a representation on 27.08.2013 to the second respondent and on 28.08.2013 to the respondents 4 and 5 that the petitioner is entitled for exemption as per the Government orders in G.O.Ms.No.165, General Administration (Services) Department, dated 22.04.1997, and she is entitled for being promoted as Headmistress as she crossed the age of 45 years. There was no reply to the representation submitted by the petitioner on 06.09.2013. Though the second respondent withdrew the earlier proceedings dated 19.08.2013 by subsequent proceedings dated 11.10.

2013, the promotion of the sixth respondent was not cancelled. When the petitioner submitted a representation on 13.10.2013, the third respondent addressed a letter on 30.10.2013 to the second respondent seeking clarification with regard to promotion of the petitioner and the second respondent did not issue any clarification. In those circumstances, the petitioner filed the Writ Petition challenging the promotion given to the sixth respondent by proceedings dated 10.09.2013.

3. In the said Writ Petition, this Court, by an order dated 17.12.2013, directed the second respondent to issue clarification sought for by the third respondent within two weeks. In pursuance of the said direction, a clarification was issued on 26.12.2013 stating that the third respondent has to wait for vacation of interim orders received in the present Writ Petition.

4. The sixth respondent in the above Writ Petition filed W.P.No.13040 of 2015 challenging the action of the respondents in not fixing her pension on the basis of last drawn pay in the cadre of Headmistress on the ground of pendency of W.P.No.36800 of 2013, even though she retired on 30.09.2015.

5. A counter affidavit is filed on behalf of the respondents 1 to 4 stating that the petitioner in W.P.No.36800 of 2013 was originally appointed as School Assistant (Telugu) on 17.08.1979 in the fifth respondent-School and the sixth respondent was appointed as Secondary Grade Teacher (Social) on 25.02.1977 and thereafter she was promoted as School Assistant on 25.11.1988. The sixth respondent passed Head Master Accounts Test as per G.O.Ms.No.167, Education (B) Department, dated 09.03.1984, for being promoted to the post of Head Master/Head Mistress, but the petitioner has not passed the said test. It was denied that G.O.Ms.No.9, School Education (SER.II) Department, dated 23.01.2009, was issued in supersession of all earlier orders, but it is applicable only to Government Schools.

The petitioner has been working in the fifth respondent-School which is Aided School. Even though the orders issued on 19.08.2013 by the Commissioner were later on withdrawn on 11.10.2013, the petitioner is not entitled for promotion as Head Mistress since no Accounts Test was passed. The representations of the petitioner dated 06.09.2013, 15.10.2013 and 25.10.2013 were considered and rejected by the Regional Joint Director of School Education, Warangal, by proceedings dated 05.10.2015.

6. The facts of the case make it clear that the petitioner was appointed as School Assistant (Telugu) on 17.08.1979 and she did not pass Headmaster Accounts Test which is the prerequisite for consideration for promotion to the post of Headmistress as per G.O.Ms.No.167, Education (B) Department, dated 09.03.1984, but the Government issued G.O.Ms.No.184, Education (K) Department, dated 15.03.1984, exempting the persons from passing the Accounts Test after attaining the age of 45 years and the same was reiterated in G.O.Ms.No.165, General Administration (Services) Department, dated 22.01.1997. In view of the same, the petitioner should have been

allowed to continue when she was holding the post of Incharge Headmistress with effect from 01.05.2013, but due to wrong interpretation of the orders she was asked to hand over the charge to the sixth respondent by proceedings dated 10.09.2013. The sixth respondent assumed charge as Headmistress on 23.09.2013 and retired on 30.09.2015.

7. Though this Court directed the second respondent to issue clarification to the letter of the third respondent, the second respondent merely stated that the clarification should be awaited till the vacation of the interim order in the Writ Petition filed by the petitioner, without clarifying the correct position. Now the petitioner is holding the post of Incharge Headmistress.

8. In view of the interpretation placed by this Court as above, the order dated 05.10.2015 passed by the Regional Joint Director of School Education, Warangal, is held to be not correct and is accordingly set aside.

9. In the circumstances, W.P.No.36800 of 2013 is allowed and W.P. No.13040 of 2015 is disposed of directing the second respondent to pass appropriate orders within a period of thirty (30) days from the date of receipt of a copy of this order regulating the period of service rendered by the petitioner in W.P.No.13040 of 2015 and also the period of service rendered by the petitioner in W.P.No.36800 of 2013 by taking into consideration the orders as interpreted above.

10. In view of the disposal of the main Writ Petitions, the Contempt Case is closed. There shall be no order as to costs.

11. As a sequel thereto, the miscellaneous applications, if any, pending in these Writ Petitions and the Contempt Case shall stand closed.

________________________ A.

RAMALINGESWARA RAO, J Date: 28.06.2016 Nsr