Andhra Pradesh High Court - Amravati
D. Ameena Bee vs The Special Officer, on 20 March, 2022
HON'BLE SRI JUSTICE A.V.SESHA SAI
AND
HON'BLE SRI JUSTICE RAVI CHEEMALAPATI
WRIT PETITION No.21986 of 2017
ORDER:- (Per AVSS,J) Applicant in O.A.No.691 of 2014, on the file of the Andhra Pradesh Administrative Tribunal, is the petitioner in the present Writ Petition. This Writ Petition is filed under Article 226 of the Constitution of India, questioning the order dated 03.04.2017, passed by the Tribunal, dismissing the said Original Application. Petitioner herein filed the said Original Application, questioning the proceedings in Roc.No.80/2014/C2, dated 02.02.2014, issued by the Special Officer, Guntakal Municipality, Anantapur District. By way of the said order dated 02.02.2014, 1st respondent herein, cancelled the promotion orders dated 01.02.2014, issued in favour of the petitioner.
2. According to the petitioner, she possess M.A (Urdu) and TTC qualifications and on 20.02.1984, she was appointed as SGBT in 1st respondent-Municipality. Keeping in view, the policy of the Government of India in IX plan, for extension of financial assistance for (i) opening of 30,000 upper primary schools in blocks where female literacy is lower than the average female literacy rate of the State and (ii) for provision of a headmaster in 25% of primary schools in the State, the Commissioner and Director of School Education vide letter No.425/B5-1/97 dated 30.04.1997 and 16.07.1997, 2 AVSS,J & RC,J W.P.No.21986 of 2017 formulated the proposals taking into account the census of 1991 and proposed upgradation of 3000 primary schools into upper primary schools during the academic year 1997- 1998. The Commissioner and Director of School Education also submitted proposal for creation of 10,647 posts of headmasters in 25% of the existing primary schools in the State and also opined that there is dire need for creation of separate headmaster posts for primary schools in the cadre of School Assistants to improve the enrolment retention and quality education for girl children by giving academic guidance and supervision.
3. In furtherance of the above, the State Government issued G.O.Ms.No.400, Education (Prog.I) Department, dated 05.12.1997, agreeing for the proposal of Commissioner and Director and accorded sanction for creation of 10,647 posts of Headmasters for primary schools in the scale of pay of Rs.2525-5390 to work as Head Masters in 25% existing primary schools in low female literacy villages during 1997- 1998 and directed the Commissioner and Director of School Education to fill up the said posts by following the following guidelines:
i) The 10,647 posts of Head Masters shall be allotted to all Districts based as female literacy as per the Annexure to this order.
ii) The posts so allotted to each district shall be created only in the schools in the low female literacy villages duly arranging all villages in ascending order in female literacy.
iii) The promotions shall be done based on considered seniority of all S.G.B.T.s in the district."
iv) The District Educational Officers shall fill up these posts by promotion from amongst the senior most S.G.B.T. teachers working in Primary Schools.
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v) The promoted Headmasters shall give an undertaking that they will work in the place of posting for a period of 10 years (Ten Years) from the date of posting, unless shifted by the Management to another low female literacy village on transfer.
vi) The Headmaster shall not be posted outside low literacy village on transfer for a period of 10 years (Ten Years).
vii) If the senior most teacher in the panel is not willing to abide these conditions; chance may be given to the next in the seniority list so as to ensure that the benefits of this programme reach the girl children in low female literacy areas without any further delay.
viii) The teachers so placed in seniority list shall be posted to the schools based on 'counselling system' i.e., the teacher shall be offered to choose from the available vacancies in such newly created posts with senior most teacher called first and the rest in the order of seniority. The whose exercise shall be mot transparent. Order shall be issued by the District Educational Officers then and there based on the choice of the teacher. Educational Officers then and there based on the choice of the teacher.
ix) The vacancies created by these promotions shall be filled up by direct recruitment as per rules in vogus."
4. Subsequently, vide G.O.Ms.No.59, Education (PROG.I) Department, dated 04.03.1998, the State Government carried out the following amendments:
"x. All villages in the district are to be arranged in ascending order based on female literacy as in 1991. From this list, sanctioned number of villages shall be identified. xi. The primary School existing in the selected village shall be identified by the District Educational Officer in case any village has more than one primary school, the school which has the highest enrolment shall be selected for this purpose. xii. After completion of the identification of schools the identified schools shall be arranged as per the management and orders be issued duly allocating the number of Headmaster posts to the respective managements. The District Educational Officers shall instruct the respective managements to give promotions based on the seniority of all S.G.B.Ts in the district in their management.
xiii. The counseling for posting of the promoted teachers shall be held in all the district headquarters by respective managements. For this purpose all the available vacancies shall be displays on board and the senior most teacher shall be given the first choice to choose the vacant place. The vacancy so choosen shall be erased from the list and posting orders be issued then and thereby the Chief Executive Officers/District Educational Officers as the case may be. This process shall go on till all the promoted S.G.B.Ts are exhausted."
5. In the Month of January, 2014 respondents intended to effect promotion to the post of Low Female Literacy Headmasters in Guntakal Municipality. In the final seniority 4 AVSS,J & RC,J W.P.No.21986 of 2017 list of SGTs, dated 23.01.2014 of Guntakal Municipality, petitioner stood at Sl.No.1 and accordingly vide proceedings dated 01.02.2014, the 1st respondent herein considered the petitioner and promoted her as Low Female Literacy Headmistress and posted at Sri Mahatma Gandhi Municipal High School, Hanumesh Nagar, Guntakal and the petitioner joined as such on 02.02.2014. Subsequently, on the ground that certain DSC, 2008, teachers raised certain objections against the said posting of the petitioner, the 1st respondent herein vide order dated 02.02.2014, cancelled the orders of promotion on 01.02.2014. Assailing the validity of the said cancellation order dated 02.02.2014, petitioner herein approached the Andhra Pradesh Administrative Tribunal, by filing O.A.No.691 of 2014. The Andhra Pradesh Administrative Tribunal, vide order dated 03.04.2017, dismissed the said Original Application filed by the petitioner. In the above back ground, the present Writ Petition came to be instituted.
6. Heard Sri Karanam Ramesh, learned counsel for the petitioner and Sri Vadapalli Ramesh, learned Government Pleader for Services-IV for respondents, apart from perusing the entire material available on record.
7. It is contended by the learned counsel for the petitioner that the 1st respondent passed the impugned order, dated 02.02.2014, without being preceded by any notice and opportunity of hearing to the petitioner. It is further contended that the finding of the Tribunal that G.O.Ms.No.400, Education (Prog.I) Department, dated 5 AVSS,J & RC,J W.P.No.21986 of 2017 05.12.1997 and G.O.Ms.No.59, Education (PROG.I) Department, dated 04.03.1998, are not applicable and are not correct, in view of the proceedings of the District Educational Officer, vide Rc.No.805/A7/98, dated 31.10.1998 and according to which 4 posts were allotted to the 1st respondent- Municipality. It is also the submission of the learned counsel for the petitioner herein that the petitioner herein is qualified to hold the post of Headmaster as per rules.
8. On the contrary, Sri Vadapalli Ramesh, learned Government Pleader for Services-IV appearing for respondents contends that there is absolutely no illegality nor infirmity in the order passed by the Tribunal, as such the same is not amenable for any review under Article 226 of the Constitution of India.
9. Learned Standing Counsel for respondent No.2- Municipality has also totally supported the arguments of the learned Government Pleader.
10. It is absolutely not in controversy that the 1st respondent herein, after considering the case of the petitioner, whose Serial Number is 1 in the seniority list of Secondary Grade Teachers in the Municipality, passed an order dated 01.02.2014, promoting the petitioner as Low Female Literacy Headmistress and posted in Sri Mahatma Gandhi Municipal Primary School, Guntakal. Solely on the ground that, 2008 teachers raised certain objections, the 1st respondent passed 6 AVSS,J & RC,J W.P.No.21986 of 2017 an order dated 02.02.2014, cancelling the earlier orders of promotion dated 01.02.2014.
11. In the Original Application, the petitioner herein categorically stated that without assigning any reasons and without being preceded by any notice, such orders came to be passed by the 1st respondent. Petitioner herein also stated that she possess qualifications as per G.O.Ms.No.11, School Education (SER-II) Department, dated 23.01.2009.
12. A perusal of the order passed by the Tribunal reveals, in clear and vivid terms, that the Tribunal declined to consider the request of the petitioner on the ground that the orders issued by the State Government vide G.O.Ms.No.400, Education (Prog.I) Department, dated 05.12.1997 and G.O.Ms.No.59, Education (PROG.I) Department, dated 04.03.1998 would not apply to the Municipalities. In this context, it may be appropriate to refer to proceedings of the District Educational Officer, Rc.No.805/A7/98, dated 31.10.199. A copy of the said proceedings is made available along with the present Writ Petition as material paper. By way of the said proceedings, the District Educational Officer, Anantapur, allotted 4 posts to Guntakal Municipality. The fact remains that the said proceedings of the District Educational Officer dated 31.10.1998, did not come to the notice of the Tribunal while disposing of the Original Application. It is also significant to note that in the counter affidavit filed by respondent Nos.4 and 5 in para 4(iii) and (iv) it is stated as follows:
7 AVSS,J & RC,J W.P.No.21986 of 2017 "4(iii) I submit that the Head Masters in Low Female Literacy posts are created for the purpose of improving educational levels among Girl children who are in the age group of 5 to 10 years, mainly to supervise, manage the existing and ongoing programmes of improving Girls Education in the villages/wards in the rural and urban areas respectively. One of the prime important factors for appointment in the said posts is the fluency of the local language of the catchment area as the LML Head Master has to communicate fluently with the parents, more particularly with the parents who are sending their wards for the first time to the schools and who are being deprived of attending the schools only as they belong to female gender.
(iv) I submit that the Respondent no.1 had affected promotions to the post of LFL Head Masters by taking the combined seniority list of Secondary Grade Teachers (SGTs). In the said combined list, the SGTs of Telugu, Urdu, Tamil, Kannada, Oriya mediums were considered."
13. Though the petitioner herein categorically made an assertion in the Original Application that the impugned action came to be resorted to without being preceded by any notice, the Tribunal failed to take the said aspect into consideration. It is a settled and well established principle of law that any action which has civil consequences must necessarily be preceded by notice and opportunity to the person likely to be affected by such action.
14. In the instant case, the 1st respondent herein violated the said principle. Infact, the Tribunal on the said sole ground ought to have remitted the matter back to the 1st respondent.
15. In view of the above reasons, the Writ Petition is allowed, setting aside the order dated 03.04.2017, passed by the Tribunal in O.A.No.691 of 2014 and also the order of the Special Officer, Municipal Counsel, Guntakal and the matter is remitted back to the 1st respondent for fresh consideration of the issue, after giving notice and opportunity of hearing to the petitioner herein. Till the said exercise is completed, the 8 AVSS,J & RC,J W.P.No.21986 of 2017 interim order dated 24.07.2017 passed by this Court in W.P.No.21986 of 2017 shall remain in operation. There shall be no order as to costs.
Miscellaneous Petitions pending, if any, in this Writ Petition shall stand closed.
_________________________ JUSTICE A.V.SESHA SAI _________________________________ JUSTICE RAVI CHEEMALAPATI Date:21.03.2022 VSL 9 AVSS,J & RC,J W.P.No.21986 of 2017 HON'BLE SRI JUSTICE A.V.SESHA SAI AND HON'BLE SRI JUSTICE RAVI CHEEMALAPATI WRIT PETITION No.21986 of 2017 21.03.2022 VSL