Andhra HC (Pre-Telangana)
Chitti Simhachalam Naidu And Others vs Board Of Governors, A.P. Residential ... on 11 November, 1999
Equivalent citations: 2000(1)ALD178, 1999(6)ALT308
Author: B. Sudershan Reddy
Bench: B. Sudershan Reddy
ORDER
1. The case on hand is a classic illustration and demonstration as to how adhocism and exercise of unstructured discretion by authorities inevitably leads to arbitrariness. Lack of clear cut policy and vision landed the Andhra Pradesh Residential Educational Institutions Society, as well as its teaching staff in trouble. Unchannalised power is antithesis to rule of law and is always fraught with serious consequences. This is a case of "spider getting caught in its own web".
2. The Andhra Pradesh Residential Educational Institutions Society (for short 'the Society') is formed by the Government of Andhra Pradesh with the sole object to establish., maintain, controlling and managing the residential schools and colleges for the talented and meritorious children residing in the State of Andhra Pradesh. The Management of the Society is vested in the Board of Governors, Minister in-charge of Education as the Chairman, Secretary for Education as Vice-Chairman; Secretary to Government, Finance Department, Director of Higher Education, Director of School Education, Director of Tribal welfare, Director of Back-ward classes welfare; Principal, Hyderabad Public School and the Secretary of the Society as its Members. There are about more than one hundred residential high schools, seven junior colleges and two degree colleges under its management located in various parts of the State of Andhra Pradesh. The Schools under the management of the society are known as 'residential schools' and colleges and junior colleges are known as 'residential junior colleges'.
3. In residential schools there are two categories of posts in the teaching side - (a) Trained Graduate Teacher and (2) Postgraduate Teacher. The scale of pay of Trained Graduate Teacher as on today is Rs.2930-5960 and the scale of pay of Postgraduate teacher is Rs.3310-6840; whereas the scale of pay of a Junior Lecturer is Rs.3640-7580. Until the revision of the pay scales with effect from on 1-4-1990, the scale of pay of the Post-graduate teacher and the Junior Lecturer was one and the same i.e., Rs.1550-3550. However, the scales of pay were revised with effect from 1 -4-1990 prescribing different scales for each of" the category of posts. The qualifications prescribed for the postgraduate teacher and that of the post of Junior Lecturer are one and the same; whereas the qualifications prescribed for the trained graduate teacher are:
(1) B.A. or B.Sc., with 50% or more marks in the relevant subject;
(2) B.Ed., or equivalent qualification of recognised University;
(3) Teaching experience of not less than three years.
4. The Andhra Pradesh Residential Junior College, Nagarjunasagar, is the first residential Junior college to be established during the academic year 1975-76; two other residential junior colleges are opened only after a period of ten years during the years 1985-86 and the rest of the colleges have tome into existence thereafter. The teaching posts in the Residential Junior College, Nagarjunasagar, were filled up by way of direct recruitment. It is evident from the record and about which there is no dispute whatsoever, that prior to 1984, there was no proper promotion channel to the teaching staff working in the residential schools. The Board of Governors in its meeting held on 15-10-1984 having accepted the recommendations of the sub-committee constituted by it, resolved to provide promotion from the Post of Trained Graduate Teacher (for short 'TGT') to the post of Post-Graduate Teacher (for short 'PGT') and for conversion from the post of Post-Graduate Teacher to the post of Junior Lecturer. The Board of Governors, in their another meeting held on 12-3-1985 further resolved to prescribe minimum three years service either in the category of TGT or PGT and to maintain inter se seniority list of TGT and PGT, who are having requisite qualifications to hold the post of Junior Lecturers.
5. It appears that in view of the identical pay scale of PGT and the Junior Lecturer, the society was posting the PGT to work as Junior Lecturer and in the same manner the TGTs with higher educational qualification and rich teaching experience were also being posted as Junior Lecturers; but, in their own scales of pay. It appears that in some cases, senior most PGTs. working in the residential schools expressed their unwillingness to work as Junior Lecturers in the residential junior colleges located in agency areas, though their services as such were required. In the circumstances and in the interest of better educational instructions to the students who are studying in the agency area, highly qualified TGTs. were also posted against the post of Junior Lecturer in their own scales of pay.
6. It would be appropriate and relevant at this stage to notice that the Board of Governors by resolution dated 15-10-1984, already adverted to supra, prescribed the following qualifications for promotion as PGT from the post of TGT.
(a) First or second class MA/MSc Degree with Not less than 50% marks;
(b) First or second class B.Ed Degree.
(c) At least two years teaching experience as TGT in a residential school of the society.
7. Seniority is the criteria for consideration of the claim of the eligible TGTs. for promotion to the category of PGT. It may also be required to notice that whenever TGTs. and PGTs. were posted as Junior Lecturers they were not appointed in any substantive post of Junior Lecturer. They were being deputed to work and discharge the functions of Junior Lecturer. The posting orders of such PGTs. and TGTs. invariably contained the following conditions.
(a) This is purely a temporary transfer and the incumbent may be posted to his substantive post i.e., PGT (or) TGT whenever the College service , Commission allots regular candidates for appointment (or) at any time without assigning any reasons therefor.
(b) This transfer is made as per the option Exercised by him/she will be in his/her own scale of pay with his present pay.
(c) Since this transfer does not confer on his any Right to claim for his confirmation as Junior Lecturer by virtue of the present transfer. His/her status and seniority will be in regular cadre as PGT/TGT only.
8. It may also be appropriate to notice that the Board of Governors of the Society in its meeting held on 31-5-1999 approved the recommendations of the Standing Committee of the society and created a channel of promotion for the post of PGT in A.P. Residential Schools and Junior Lecturers in A.P. Residential Junior Colleges. As per the service Rules of the respondent-society, the post of Junior Lecturer is required to be filled up in the ratio of 1:1 i.e., to say 50% by promotion and the remaining 50% by way of direct recruitment through the A.P. College Service Commission (for short 'AFCSC'). The following qualifications are prescribed for promotion to the Post of PGT and Junior Lecturer.
(a) First or Second class P.G. Degree in concerned Subject with not less than 50% of marks.
(b) An experience of three years as P.G. Teacher in A.P. Residential Schools.
Seniority-cum-subject requirement in the cadre of PGT is the criteria for consideration of the claims of PGTs. for promotion to the category of Junior Lecturer.
9. With this back ground, the grievance of the petitioners herein may have to be noticed. All these petitioners, in the instant writ petition were appointed as TGTs. during the years 1988; 1989 and 1990, itself, and presently working as Junior Lecturers. Such a situation had arisen because many PGTs did not give option for conversion as Junior Lecturers. It appears that as an ad hoc measure a decision was taken by the society in the year 1985 that TGTs. with five years service are eligible for appointment to the post of Junior Lecturer and further decision was taken later that a TGT or PGT with three years is eligible for appointment as Junior Lecturer. However, as noticed earlier, a decision was later taken that 50% of the Junior Lecturer posts shall be filled by PGTs. by way of promotion and the rest of the 50% be filled in by direct recruitment through the medium of APCSC. The present writ petition is filed by the petitioners, apprehending that they may be reverted to their substantive post of TGT, only to accommodate the PGTs., in the substantive post of Junior Lecturers. It is their case that the very same PGTs. refused to give option for conversion as Junior Lecturers as their pay scale, at the relevant time, was one and the same. According to the petitioners, the PGTs. are now asserting and opting for appointment, as Junior Lecturers by conversion, as the post of Junior Lecturer now carries higher pay scale.
10. It is the case of the petitioners that many of the PGTs. were appointed as Junior Lecturers by conversion subsequent to their appointment as Junior Lecturers, and, therefore, if there has to be any reversion for accommodating the direct recruits, such of those PGTs. who joined subsequent to these petitioners should go first. It is their simple claim that though they are TGTs., they were appointed earlier to some of the PGTs. and they acquired seniority in the cadre of Junior Lecturers. The action proposing to revert the petitioners to give place either to the PGTs., or to the direct recruits, is not in conformity with law, is the substance of the petitioners' case.
11. Mr. G. Vedantha Rao, learned senior Counsel appearing on behalf of the petitioners submits that the proposed action of the respondents for reverting the petitioners after so many years of service as Junior Lecturers in the residential colleges is not only illegal, but arbitrary and violative of fundamental rights guaranteed under Articles 14, 16 and 21 of the Constitution of India. It is urged by the learned senior Counsel that the petitioners are eligible and entitled for regularisation of their services as Junior Lecturers and refusal to regularise their service is arbitrary. It is submitted that the petitioners are entitled for a declaration to the effect that the respondents are not entitled to withdraw the petitioners from the post of Junior Lecturers and post them as TGTs.
12. In the counter affidavit filed, the respondent-society, stated that the APCSC has allotted candidates in different subjects for posting them as Junior Lecturers as against the vacancies meant for direct recruits. The petitioners have been working against the post of Junior Lecturers which were meant for direct recruitment and, therefore, they have to be replaced by sending them to their substantive post of TGTs. in order to fill up the resultant vacancies with the candidates allotted by the APCSC. It is denied in categorical terms that the petitioners are being sent back as TGTs. to accommodate the PGTs. The move to send them back to their substantive post of TGTs. is only to accommodate the APCSC candidates allotted against the 50% quota meant for direct recruits. It is also stated that the petitioners were not appointed as Junior lecturers as such, but they were transferred and posted against the vacancy of Junior Lecturer in the residential junior college in their own scales of pay and present pay until further orders.
13. There is no dispute whatsoever that all the petitioners herein are still continuing in their substantive post of TGT only and they are drawing their pay in the scale of pay of TGT only. It is, thus, clear that the petitioners would not be put to any monetary loss as such, and all of them are entitled for their revised scale of pay in the category of TGT. It is also clear from the very proceeding transferring the petitioners and posting them against the vacancy of Junior Lecturer in the residential Junior colleges, that such transfer is subject to condition that they may be posted to their original category of TGT at any time and the transfer itself has been made as per the option exercised by the petitioners to work as Junior Lecturer in their own scales of pay with the present pay. The order itself would reveal that the petitioners would not have any claim over the post of Junior Lecturer by virtue of the present transfer. It is further stated in categorical terms that their status and seniority will be in the regular category of TGT only.
14. It is interesting to notice that three of the petitioners, who were appointed by conversion as Junior Lecturers were regularised in the cadre of Junior Lecturers. In the reply affidavit it is stated that seventeen teachers either PGTs. or TGTs., who were temporarily appointed by the principals were regularised as Junior Lecturers in September, 1993, and few in 1998. This aspect of the matter though stated in the reply affidavit, has not been denied by the respondent-society. These clear instances would speak volumes as to how the respondent-society has been conducting its affairs in an utterly chaotic and directionless manner.
15. In the counter affidavit, it is stated that the respondent-society had prepared a seniority list of all categories that is to say TGTs. and PGTs. in residential schools and the Junior Lecturers working in the residential junior colleges. It is stated that the names of some of the of the PGTs. and TGTs. who were deputed to work as Junior Lecturers were included in the seniority list of Junior Lecturers, as well as in their substantive post and promotion post. It is submitted that it is a bona fide mistake on the part of the respondent-society in showing the names of the candidates in the seniority list of all categories.
16. It is further stated that it is a mistake on the part of the respondent-society in counting the seniority of PGTs. in the category of Junior Lecturers from the date of their entry into the category of Junior Lecturer. It is further stated that the seniority of TGTs. was counted for regularisation in the category of Junior Lecturers from the date on which they acquired promotion as PGTs., since they were already working as Junior Lecturers. This has resulted in anomalous situation adversely effecting the claims of seniors in the category of PGTs. It is stated that number of representations were received complaining that the seniors who were deputed to work as Junior Lecturers were over looked in the seniority list and their names were shown below their juniors' names taking into account their entry into the category of Junior lecturers alone. The respondents have gone to the extent of requesting the Court to set aside the panel and the seniority list of the Junior Lecturers dated 13-4-1991 in Proceedings Rc.No.3485/ C-l/90 by giving an opportunity to the respondent-society to rectify the mistake and to prepare a fresh seniority list.
17. It is thus evident that the respondent-society itself is responsible for creating the present anomalous situation. But the question is - whether the respondent-society should be compelled to perpetuate the mistake it had committed earlier. As noticed earlier, the TGTs., as well as the PGTs were deputed to work in the substantive post of Junior Lecturer purely on temporary basis, with a condition that the incumbent may be posted to his original category of TGT/PGT at any time. It was made clear that the transfer and appointment as Junior Lecturer would not confer any right upon the petitioners and their status and seniority will be in regular category of TGT only. It is required to notice that the petitioners were not even promoted as PGTs. Therefore, they could not have been directly appointed as Junior Lecturers. The question of regularisation of the services of the petitioners in the category of Junior Lecturer does not arise. They were neither promoted to the category of Junior Lecturer in the order of seniority-cum-subject requirement, nor they were directly recruited in the 50% vacancies through the medium of APCSC. May be at the relevant time, the PGTs. in the residential schools and the Junior Lecturers in the residential Junior colleges were carrying identical scale of pay and due to exigencies of the situation PGTs. were converted to the post of Junior Lecturers. That itself would not be enough for regularisation of the PGTs. or the TGTs. working as Junior Lecturers. The mistake committed by the respondent-society in showing the names of some of the TGTs. and PGTs., who are deputed to work as Junior Lecturers in the seniority list of Junipr Lecturers, itself, would not confer any right upon the petitioners and such ofthose PGTs. and TGTs., who were merely deputed to work as Junior Lecturers. It is true, the mistake committed by the respondent-society either unintentionally or otherwise, is the sole cause that has resulted in this avoidable situation.
18. In my considered opinion, any direction from this Court, directing the respondent-society herein to continue the petitioners as Junior Lecturers and regularisation of their services in the category of Junior Lecturers may amount to compelling the respondent-society to perpetuate the illegality. It is now clear from the counter affidavit filed by the respondent-society that 50% of the vacancies in the post of Junior Lecturer have to be filled up by direct recruitment and the remaining 50% by promotion from PGTs. with necessary qualifications of first or second class P.G. Degree and with experience of three years PGT in A.P. Residential School alone are entitled to be promoted. That decision of the respondent-Society does not suffer from any legal or constitutional infirmity. Viewed in that angle, the respondent-society cannot be compelled to regularise all those PGTs. and TGTs. who are working in the post of Junior Lecturer, unless they were promoted as Junior Lecturers in accordance with the revised policy decision of the respondent-society. Therefore, the services of the petitioners cannot be directed to be regularised.
19. It is well settled that merely because the respondent-authority has passed one illegal/unwarranted order, it does not entitle this Court to compel the authority to repeat that illegality again and again. The illegal/ unwarranted action must be corrected, if it can be done according to law -- indeed, wherever it is possible, the Court should direct the appropriate authority to correct such wrong orders in accordance with law -but even if cannot be corrected, such an illegal or wrongful order cannot be made a basis for its repetition. The Court cannot give effect to an illegal or unwarranted action and any such direction from this Court would perpetuate the illegality and would be prejudicial to the interest of law and will do incalculable mischief to the public interest (See: Chandigarh Administration v. Jagjit Singh, 1995(1) Scale 32).
20. In similar circumstances, this Court in Dr. K. Changalraya Chetty v. The Secretary, A. P. Residential Education Institute Society, WP 4785 of 1991 dated 10-9-1996, observed that appointments in the nature of stop gap arrangements does not vest in the appointee any enforceable right. This Court dealing with the very same question observed:
"At the threshold it may be noted that the petitioner came to be placed in officiating position of a Junior Lecturer by the order dated 17-9-1990. The conditions to which the officiating appointment was made make it very clear that the appointment was in the nature of stop-gap arrangement, purely temporary, liable to be terminated at any time, and it docs not vest in the appointee any enforceable right. Therefore, the power to issue the impugned order is traceable to the very order dated 17-9-1990 by which the petitioner was appointed on officiating basis as Junior Lecturer. Even assuming that the selection and appointment of the candidates by the College Service Commission and allotment of such candidates to the first respondent college is irregular and not in conformity with the provisions of the A.P. College Service Commission Act, 1985, the petitioner cannot have any legitimate grievance inasmuch as by that action none of his legal rights are violated. It is relevant to note that the petitioner was appointed on officiating basis not against the post which was earmarked for the converts but against a post which was admittedly earmarked for direct recruits. It is also relevant to note that it is not a case where the petitioner was reverted to the substantial post held by him and some one among the converts belonging to the same class to which the petitioner belongs has replaced the petitioner's position as Junior Lecturer on officiating basis. Therefore, there is no scope even to apply the test of irrationality. If the selection and appointment of Junior Lecturers by the College Service Commission is irregular and illegal and if the petitioner is aggrieved by that action, it is for him to institute appropriate legal proceedings and seek appropriate reliefs. In this writ petition the appointments of some the converts possessing lesser qualifications than the petitioner and who are stated to have been promoted as Junior Lecturers against 50% quota earmarked for converts are not assailed and, therefore, I do not find any necessity to examine the correctness of the submission of the learned Counsel for the petitioner. The same is kept open to be agitated by the petitioner in appropriate legal proceedings."
The aforesaid judgment clearly applies to the situation on hand.
21. The petitioners in my considered opinion are not at all entitled for any relief. The action proposing to send the petitioners, except the petitioner Nos.2 and 4, to their respective substantive posts does not suffer from any legal infirmity. In fact, the petitioners are continuing in their substantive post of TGT only and they are only discharging the functions of Junior Lecturers in the Residential Junior Colleges. They were never paid salary payable to a Junior Lecturer and they were deputed on transfer to discharge functions temporarily as Junior Lecturers with the pay attached to their substantive post of TGT.
22. No doubt, the learned Counsel for the petitioners placed reliance upon a decision of the Supreme Court in Dhirendra Chamoii v. State of UP, 1986 (52) FLR 147, in support of his plea that the petitioners are entitled for the same salary payable to the post of Junior Lecturers, as they are also discharging the functions of the Junior Lecturers and teaching in Residential Junior Colleges.
The judgment is required to be understood in the light of the development of law and its march.
23. The Supreme Court in the case of State of Punjab v. Surinder Kumar and others, , while reversing the judgment of the High Court directing regularisation of part-time lecturers, though they were appointed as Part-time lecturers on the specific condition that they could be relieved at any time without any notice and mat payment would be made hourly basis, observed that:
"A decision is available as a precedent only if it decides a question of law. The respondents are, therefore, not entitled to rely upon an order of this Court which directs a temporary employee to be regularised in his service without assigning reasons. It has to be presumed that for special grounds which must have been available to the temporary employees in those cases, they were entitled to the relief granted. Merely because grounds are not mentioned in a judgment of this Court, it cannot be understood to have been passed without an adequate legal basis therefor. On the question of the requirement to assign reasons for an order, a distinction has to be kept in mind between a Court whose judgment is not subject to further appeal and other Courts. One of the main reasons for disclosing and discussing the grounds in support of a judgment is to enable a higher Court to examine the same in case of a challenge. It is, of course, desirable to assign reasons for every order or judgment, but the requirement is not imperative in the case of this Court. It is, therefore, futile to suggest that if this Court has issued an order which apparently seems to be similar to the impugned order, the High Court can also do so. There is still another reason why the High Court cannot be equated with this Court. The Constitution has, by Article 142, empowered the Supreme Court to make such orders as may be necessary "for doing complete justice in any case or matter pending before it. Which authority the High Court does not enjoy. The jurisdiction of the High Court, while dealing with a writ petition is circumscribed by the limitations discussed and declared by the judicial decisions, and it cannot transgress the limits on the basis of whims or subjective sense of justice varying from Judge to Judge."
24. As noticed earlier, the petitioners herein were not entitled for appointment as Junior Lecturers on the day when they were transferred and appointed as such. The order under which they were appointed as Junior Lecturers do not confer any right upon the petitioners to be appointed to the said post, nor were they entitled to be appointed as such in accordance with any Rules. The appointments were only attributable to exigencies of the situation. The petitioners, however, are justified in stating that the subsequent actions of the respondent-society gave them hope to get similar relief from the respondent-society. But the action of the respondent-society is concededly illegal and on account of "unintentional mistake". In my considered opinion the mistakes committed by the respondent-society will not confer any enforceable right upon the petitioners nor the same would have any precedent value.
25. Whether motivated or unintentional inaction on the part of the respondent-society in framing the Rules and Regulations appears to be the main cause of landing the every one concerned in this mess. The respondents alone are to be blamed for landing the institution and its personnel in quagmire. May be the situation warrants a thorough probe into the affairs of the management of the respondent-society by the Government with an object to streamline the management and if necessary by restructuring the whole organisation to ensure the transparency and accountability. There is an urgent need to frame Statutory Rules and Regulations governing the conditions of teaching and non-teaching staff working in the Respondent-Society. The employees working in the organisation are entitled to know as to where they do stand.
26. The Government of Andhra Pradesh obviously found and brought the society into existence to facilitate establishment of autonomous residential schools and colleges and their smooth functioning; but not with an intention of conferring any immunity on the society and its managers from the rigours of Rules of law. The respondent-Society undoubtedly discharges public law functions of providing education and its actions are required to be transparent and accountable. Its actions are liable to be tested on the touch stone of Doctrine of equality as enshrined in the Constitution of India. The residential schools and colleges are established not for the purpose of providing any employment as such, but with a noble object of providing quality education at the cost of the public exchequer to the needy and precisely for that reason the schools and colleges are mostly located in the back ward and agency areas. The established residential schools are to be known as 'Gurukula Vidyalayalu' for the talented and meritorious children residing within the State of Andhra Pradesh. It is for the social auditors to decide as to whether any of the perceived purposes and objects as such have been achieved; but it is painful to notice the contribution made by the respondent-society to docket explosion in the Courts.
27. For all the aforesaid reasons, I do not find any merit in this writ petition and the same shall accordingly stand dismissed. There shall be no order as to costs.
28. However, it shall be open to the respondent-society to proceed further in the matter in accordance with law and set aside the whole seniority list prepared in Proceedings Rc.No.3485/C1-1/90 dated 18-4-1991, which has given raise to this avoidable litigation.