Andhra Pradesh High Court - Amravati
Lutheran High School vs The Director Of School Education on 13 April, 2022
HON'BLE DR. JUSTICE K. MANMADHA RAO
WRIT PETITION No.26177 of 2011
ORDER :
This petition is filed under Article 226 of the Constitution of India for the following relief:-
"to issue an order direction or writ more particular one in the nature of Writ of Mandamus declaring the inaction of the respondents in not regularizing the services of the employees shown below :
S. Name Desig- Date of Reason for Vacancy
No. nation appointment arising arose on
vacancy
1 K. Hanoku, School 17.10.2002 Retirement 31.12.1996
S/o K.V. Nagaiah Asst. of N.H.W.
(Maths) Philpson
2 M. Chakravarthi S/o School 02.12.2002 Promotion of 07.09.1995
Lazarus Asst. G.H.Vijayan
(Maths) adam as
3 P. Annie Mary D/o School 03.03.2003 Transfer of 02.03.2003
P.D.Wilson Asst. Smt
(Maths) P.C.Krupam
ma
4 G. Indra Rani D/o School 20.11.2003 Promotion of 13.06.2004
Kantha Rao Asst. Sri V.
(Science) Jayababu as
S.A
5 V Perayya S/o Drawing 10.03.2005 Retirement 31.12.2004
V.Koti Veera Swamy Asst. of Sri K.
Subba RAo
6 P.R.F. Walter S/o Rec. Asst. 01.02.2003 Promotion of 31.01.2003
P.F.L. Mecauley Sri B.J.P.
Kumar
7 G. John Kumar S/o Rec.Asst 02.08.2004 Promotion of 01.08.2004
Issac Sri G.I.
Winstone
8 P. Santhi Swaroop Rec. Asst. 02.08.2004 Promotion of 01.08.2004
S/o Jayaraju Sri B.S. Sunil
kumar
9 G.D Karunakar S/o Class-IV 01.03.2000 Tr of Sri 25.06.1996
Issac Shyam
Prasad
10 P. Santhi Bharath Attender 01.02.2005 Death of Sri 26.01.2005
D/o P.P.Henry M.S.J.
Prasad
Who were recruited prior to November 2004, as illegal, arbitrary, capricious opposed to principles of natural justice and hence to set aside the proceedings dated 13.04.2006 and consequently to direct the respondents to regularize the services of the petitioners with effect from their respective date of recruitment in the 1st petitioner's school and pass such other order or orders......."2
2. The case of the petitioner is that it is a Christian Minority Institution managed by Andhra Evangelical Lutheran Church, Guntur registered under Societies Registration Act and that the school has in total 52 aided posts of which several vacancies both in Teaching and Non-teaching staff had arisen because of superannuation, voluntarily retirement etc. In the year 2003, the petitioner addressed a letter to the 3rd respondent to accord permission to fill sup the permanent aided posts in the school. Though the same was received by the respondents, did not choose to give any reply. Thereafter, on 09.08.2004, when another two posts fell vacant because of retirement, the petitioner sought permission to fill up the then existing vacancies by adding the two posts to the earlier request.
It is further submitted that as there is sufficient work load, precedents and as was done earlier, the petitioner society had recruited the persons in the posts that fell vacant because of superannuation etc. Thus as and when the posts fell vacant from 2002, the petitioner has been filling up the posts with a suitable candidates and had forwarded the proposals for regularization in January 2004 itself.
It is further submitted that though the 3rd respondent had received the proceedings through the 4th respondent, he did not choose to pass any orders or forward the same to the higher authorities. Though the teachers' regularization proceedings are awaited, they are discharging their duties in the vacancies as full pledged teachers teaching about 32 hours 3 a week. While so, vide proceedings in No.448/R3/2004, dated 24.11.2004, the 3rd respondent has rejected while observing that the Commissioner & Director of School Education in his proceedings has informed that no new posts of grant-in-aid would be created and the existing vacancies will not be fulfilled. It is further submitted that the respondents have been avoiding regularizing the services of the teachers recruited in 2002 on the pretext that there is a ban existing on filling up of the vacancies and as such the same cannot be taken up. The alleged ban was imposed with effect from November, 2004 vide G.O.Ms.No.212, whereas the proposals for regularization of the appointments of the staff recruited in a vacant aided post, was submitted in January 2004 and the respondents did not choose to consider and kept in cold storage. It is further submitted that if there is process of recruitment, then submitting the application for regularization of the services with effect from the date of their respective employment were done, much prior to the alleged ban and as such said ban has no application to the facts of the present case and as such the impugned order is likely to be set aside.
It is further submitted that as the petitioner being a minority institution, the roaster contemplating the G.O.Ms.No.1 for filling up the vacancies has no application as the staff recruited will be only Christian and as such their application for regularization should be considered favourably. As the respondents no.2 to 4 have failed to consider the request of the petitioner and also they did not assign proper 4 reason for keeping file without any movement from January 2004 to November 2004 i.e., till the date of imposing of the ban, the petitioner has filed an appeal before the 1st respondent on 16.07.2009. Subsequently, the Commissioner and Director of School Education has directed the 3rd respondent to submit a detailed report on the representation on or before 15.09.2009 and the same was forwarded to the 4th respondent. In spite of several months, there is no response.
It is submitted that as the petitioner sought permission for approval and regularization of the staff in resultant vacancies, the same does not amount to creation of any new posts as the existing vacancies alone were filled and no extra burden is created. It is mainly submitted that the Ban imposed by the Government has no application to the facts of the case. It is also submitted that there is no delay on the part of the petitioner in challenging the order dated 13.04.2006 of the 2nd respondent. Hence, the present writ petition.
3. The counter affidavit came to be filed by the 3rd respondent denying all the averments made in the petition and contended that the Educational agency shall be the rules 12 & 13 in terms of G.O.Ms.No.1 Education (PS.2) dated 01.01.1994 for filling up of aided posts. However, the petitioner has not followed the prescribed procedure for filing up aided post as per GO. Ms. No. 1 Education (PS-I) dated 01.01.1994 and also addressed a letter to the Government on 27.03.203 duly stated that they have appointed the teachers and non-teaching staff 5 by exercising fundamental right under article 30(1) of the Constitution of India and all teachers belong to concerned minority and the said appointed teachers are fully qualified, trained and registered in employment exchange and also stated that rule 12(6) in not applicable to them (Rule of reservation) and the teachers were appointed in the school in the interest of students.
It is further submitted that, the General Secretary, PRASMA issued directions to the District Educational Officer, West Godavari, Eluru, to issue instructions to the management of Lutheran High School, Bhimavaram, West Godavari, not to fill up the teaching and Non teaching posts like B.Ed.Asst.,SGT, Gr.II TP , Gr.II HP, Record Assist, and B.Ed Asst. and continue them until further orders to be issued by the Government as the per the SLP in the Hon'ble Supreme on Memo.No.5587/PS-3/2003-1 dated 08.12.2003.
The Correspondent, Lutheran High school, Bhimavaram had further submitted proposals for accord permission for filling up of remaining the 10 vacant posts with including 10 vacant posts of their school vide Lr.Rc.No. dated 09.08.2004. Further, the Principal Secretary to Government has approved the appointment of Teaching and Non teaching staff made by the Lutheran Aide High School, Bhimavaram under Article 30(1) of Constitution of vide Memo No. 5587/PS-2/2003-3 dated 27.12.2004. The Commissioner and Director of school Education, A.P. Hyderabad has communicated the Govt. Memo to the Regional Joint Director of School Education, Kakinada 6 with a request to take further course of action in the matter. Subsequently, the Regional Director Education, Kakinada issued orders vide Rc.No.483/D1-2/2003-1 dated 17.02.2005, which was approved by the Govt. Memo No.5587/PS-2/2003-3 dated 27.12.2004.
It is further submitted that, Correspondent, Lutheran Aided School, has submitted proposals for absorption teaching and Non-teaching post of their school to the District Educational Officer, West Godavari, Eluru and Regional Joint Director of Education, Kakinada and respectively 20.10.2004. However, the same were returned and intimated that BAN orders were issued by Government vide Memo No.122080/COSE/A2/2004-4 Edn., dated 20.10.2004 for promotions and appointments in Aided Institution vide Progs.Rc No.1388/A1/2006, dated 13.04.2006.
It is further submitted that though the petitioner has reminded the competent authority, they have rejected the proposals in terms of Govt. Memo No.12080/COSE/A2/2004-4 Education dated 02.10.2004 wherein BAN was imposed on promotion and appointments in aided institutions and the procedure as laid down in G.O.Ms.No.1 Education (PS.II) Department dated 01.01.1994 has not been followed to publish the roaster as contemplated in the G.O. Hence, prayed to dismiss the petition.
4. Heard Sri Subrahmanyam.K, learned counsel for the petitioner and learned Government Pleader for School Education appearing for the respondents.
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5. On hearing of both the counsels, it is pertinent to mention here that, according to the counter filed by the respondents, the allegations whatever made by the respondents clearly establish that now there is no ban imposed by the Government. Therefore, the BAN orders imposed by the Government are liable to be set aside.
6. In view of the above circumstances, the BAN orders imposed by the Government vide Memo No.122080/ COSE/A2/2004-4 Edn., dated 20.10.2004 for promotions and appointments in Aided Institution vide Progs.Rc No.1388/A1/2006, dated 13.04.2006 are set aside. Consequently, the petitioners are directed to submit their applications afresh and on submission of such applications, the respondents are directed to regularize the services of the petitioners as per the G.O.Ms.No.1 Education (PS-I), dated 01.01.1994 with effect from their respective date of recruitment as per the Memo mentioned above, within a period of eight (08) weeks from the date of receipt of a copy of this order.
7. With the above observation, the Writ Petition is disposed of. No order as to costs.
As a sequel, interlocutory applications, if any pending, shall stand closed.
______________________________ DR. K. MANMADHA RAO, J.
Date : 13 -04-2022
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HON'BLE DR. JUSTICE K. MANMADHA RAO
WRIT PETITION No.26177 of 2011
Date : 13 .04.2022
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