Andhra Pradesh High Court - Amravati
D. Sudhakar vs The State Of Andhra Pradesh on 14 August, 2019
Author: Cheekati Manavendranath Roy
Bench: Cheekati Manavendranath Roy
THE HON'BLE SRI JUSTICE A.V.SESHA SAI
AND
THE HON'BLE SRI JUSTICE CHEEKATI
MANAVENDRANATH ROY
WRIT PETITION No. 21215 of 2017
ORDER:
(per Hon'ble Sri Justice A.V.Sesha Sai) Unsuccessful applicants in Original Application No.9138 of 2011 on the file of the Andhra Pradesh Administrative Tribunal, Hyderabad (hereinafter referred to, as 'the Tribunal'), are the petitioners in the present Writ Petition filed under Article 226 of the Constitution of India.
2. The State Government, vide G.O.Ms.No.152, Education (PE-SERVICES-II) Department, dated 01.11.2011, framed the Rules called 'the Andhra Pradesh Direct Recruitment of Secondary Grade Teachers Limited Recruitment (Scheme of Selection) Rules, 2011 (for short, '2011 Rules')'. Pursuant to the same, a Notification dated 04.11.2011 was issued by respondent No.2 inviting applications for selection to the backlog posts of Secondary Grade Teachers (Urdu Medium) in various schools in the State, unit-wise (DSC, 2011). In response to the said Notification, the petitioners herein applied for the post of Secondary Grade Teacher (Urdu Medium). Petitioner Nos.1 and 2 belong to Scheduled Caste community, whereas petitioner No.3 belongs to Backward Class 'C' category. 2 Respondent No.3-District Educational Officer, Kurnool, vide proceedings in Rc.No.10713/DSC-2011B2/2011, dated 19.11.2011, refused to receive the applications of the petitioners on the ground that they passed additional (Urdu) subject at Intermediate level after getting degree/B.Ed. in other medium. Assailing the validity of the said order of respondent No.3-District Educational Officer, the petitioners herein approached the Tribunal, under Section 19 of the Administrative Tribunals Act, 1985, by filing Original Application No.9138 of 2011. The Tribunal, by way of order dated 16.08.2012, dismissed the said Original Application. After unsuccessfully availing the remedy of review before the Tribunal, the present Writ Petition came to be filed by the applicants before this Court questioning the said order passed by the Tribunal.
3. It is brought to the notice of this Court that pursuant to the interim order passed by the Tribunal, the petitioners/applicants appeared for the examination on 11.12.2011.
4. Heard Sri K.Ram Reddy, learned counsel for the petitioners/applicants and the learned Government Pleader for Services appearing for the respondents, apart from perusing the material available before this Court. 3
5. It is contended by the learned counsel for the petitioners that the impugned orders passed by the Tribunal, dismissing the Original Application, so also the order dated 18.08.2015 passed in Review M.A.No.2803 of 2012, are highly erroneous, contrary to law and opposed to the very spirit and object of 2011 Rules framed under Article 309 of the Constitution of India and notified by the State Government vide G.O.Ms.No.152, Education (PE-SERVICES-II) Department, dated 01.11.2011. It is also the submission of the learned counsel that there is no prohibition in the Rules on acquiring qualification as per Rule 4 (3) of the 2011 Rules subsequent to acquiring qualification, and as such, the order passed by the Tribunal cannot be sustained. In support of his submissions and contentions, the learned counsel places reliance on the order of a Division Bench of this Court in Writ Petition No.12684 of 2014, dated 24.04.2014, as confirmed by the Hon'ble Supreme Court vide order dated 26.09.2014 in Special Leave to Appeal (c) No.27945 of 2014 and order dated 05.02.2015 in Review Petition (C) No.2801 of 2014 in S.L.P. (C) No.27945 of 2014.
6. On the contrary, it is vehemently contended by the learned Government Pleader that there is no illegality nor there exists any infirmity in the impugned order passed by the Tribunal, and in the absence of the same, the questioned 4 order is not amenable to judicial review under Article 226 of the Constitution of India. It is the further submission of the learned Government Pleader that having regard to the ground realities, the Tribunal passed the impugned order, declining to grant any relief in favour of the applicants, as such, the said order cannot be faulted. In order to substantiate his contentions, the learned Government Pleader takes the support of the order passed by a Division Bench of this Court in Writ Petition No.23407 of 2010, dated 22.11.2010, as confirmed by the Hon'ble Supreme Court vide order dated 13.10.2014 in Special Leave to Appeal (C) No.11062 of 2011.
7. In the above backdrop, now, the issue that emerges for consideration of this Court is:
"Whether the order passed by the Tribunal, which is impugned in the present Writ Petition, is sustainable and tenable, and whether the same requires any interference of this Court under Article 226 of the Constitution of India ?"
8. In order to resolve and adjudicate the issue in the present Writ Petition, it would be appropriate to refer to 2011 Rules, notified vide G.O.Ms.No.152, Education (PE- SERVICES-II) Department, dated 01.11.2011. It is evident from a reading of the abovesaid Notification that the State framed the abovesaid Rules in exercise of the powers conferred under Article 309 of the Constitution of India read 5 with relevant provisions under the Andhra Pradesh Panchayat Raj Act, 1994, the Andhra Pradesh Municipalities Act, 1965 and the Andhra Pradesh Education Act, 1982. The Rule, which is pertinent and relevant, is Rule 4 of 2011 Rules, which deals with qualifications. Rule 4 of 2011 Rules reads as under:
"Secondary Grade Teacher (Urdu Medium) :-
A candidate for selection to these posts shall possess academic and professional/ Training qualifications as follows:
(1) Must possess Intermediate Certificate issued by the Board of Intermediate Education, Andhra Pradesh and D.Ed. Certificate issued by the Director of Government Examinations, Andhra Pradesh.
(2) Must possess APTET (Paper-I) Pass Certificate/Memorandum of marks with 60% and above score in respect of General candidates, 50% score and above in respect of candidates belonging to B.C. category, 40% score and above in respect of candidates belonging to SC/ST category and differently abled (at least 40% handicap in respect of Ortho/Visually Impaired and 75% handicap in respect of Hearing Impaired).
NOTE:
(a) A person with two (2) Year D.Ed. (Special Education) recognized by Rehabilitation Council of India with pass in Paper-I of APTET is also eligible for appointment as SGT provided he/she undergoes (in case of his/her selection for appointment), an NCTE recognized 6 month Special Programme in Elementary Education at his own cost.
(b) A person with B.A./B.Sc./B.Com and one year B.Ed.
WITH PASS IN paper-I of APTET is also eligible for 6 appointment as SGT upto 1st January, 2012 subject to condition that he/she undergoes (in case of his/her selection for appointment) an NCTE recognized 6 months special programme in Elementary Education at his own cost.
(c) The certificate (Academic / Teacher Education) issued by an institution/University shall not be taken into consideration if the said institution/ University does not have Permission/Recognition of NCTE/UGC respectively for the Course as per Law.
(3) The Candidates who have passed SSC Examination in Urdu medium or with Urdu Language as First Language are eligible to apply to the posts in Urdu medium. The candidates who have passed the examination of Intermediate / Degree (academic) with Urdu as language / medium are also eligible to apply for the posts in Urdu medium."
It is very much evident from sub-rule (3) of Rule 4 of 2011 Rules that the candidates who have passed examination of Intermediate with Urdu as language/medium are also eligible to apply for the posts in Urdu medium. There is absolutely no ambiguity in the abovesaid Rules. It is also not in dispute that the petitioners herein do possess Intermediate qualification with Urdu as one of the languages. When a similar question cropped up, a Division Bench of this court, in Writ Petition No.12684 of 2014, passed order dated 24.04.2014, dismissing the Writ Petition filed by the State. Paragraph no.6 of the said order reads thus:
"What the Rules contemplate is that he should possess S.S.C. examination in the concerned medium of 7 instruction. On the date of issuance of the notification, the applicant is fully qualified. The question whether he acquired the same before or after acquiring higher qualification does not make any difference. Therefore, the Tribunal rightly considered the case and gave a direction to the Writ Petitioners. Therefore, the impugned order needs no interference by this Court."
It is to be noted that as against the said order passed by the Division Bench of this Court, the authorities carried the matter in Special Leave to Appeal (c) No.27945 of 2014 and the Hon'ble Supreme Court, vide order dated 26.09.2014, while condoning the delay in filing the said appeal and while finding no merits, dismissed the said Special Leave to Appeal, and the Review Petition (C) No.2801 of 2014 in S.L.P. (C) No.27945 of 2014, seeking review of the abovesaid order, also ended in dismissal on 05.02.2015.
9. Coming to the orders on which the learned Government Pleader places reliance, a Division Bench of this Court, while dealing with the recruitment to the posts of Physical Education Teachers (Urdu) in DSC, 2008, by taking into consideration the note appended to Rule 4 of the Rules notified in G.O.Ms. No.161, dated 06.12.2008 and taking into consideration the clarificatory order issued by the Director of School Education dated 15.01.2009, allowed the Writ Petition No.23407 of 2010 filed against the order of the Tribunal in Original Application No.1230 of 2009, dated 02.09.2010, and 8 the same was confirmed by the Hon'ble Apex Court in the order dated 13.10.2014 in Special Leave to Appeal (C) No.11062 of 2011. An important aspect, which needs to be noted in this context, is that in the Notification issued vide G.O.Ms. No.161, dated 06.12.2008, there was a note appended to Rule 4 of the said Rules which stipulated that the persons who did not study in Urdu medium up to S.S.C. but obtained qualification subsequently, were not eligible for appointment for P.E.T. (Urdu) posts. A reading of 2011 Rules framed in G.O.Ms.No.152, Education (PE-SERVICES-II) Department, dated 01.11.2011 clearly demonstrates that no such note is appended to Rule 4 of the said Rules. In the absence of the same, the Rules notified vide G.O.Ms.No.152, Education (PE-SERVICES-II) Department, dated 01.11.2011 are binding on the respondents and they need to be scrupulously followed by the respondents herein while undertaking the process of recruitment, in the absence of any amendment to the said Rules. It is also required to be noted that any executive instructions issued thereafter by the Director of School Education, cannot supersede the said Rules framed under Article 309 of the Constitution of India. Therefore, the judgment rendered by the Division Bench of this Court in Writ Petition No.23407 of 2010, dated 22.11.2010, in the considered opinion of this court, would not render any assistance to the respondents herein for justifying 9 their action. In the considered opinion of this Court, the Tribunal travelled beyond the scope of the abovesaid Rules and did not consider the abovementioned Rule position in proper perspective, which resulted in passing of the impugned order. Therefore, this Court has absolutely no scintilla of hesitation to hold that the order passed by the Tribunal cannot be sustained in the eye of law.
10. For the aforesaid reasons and having regard to the law laid down by this Court in Writ Petition No.12684 of 2014, dated 24.04.2014, as confirmed by the Hon'ble Supreme Court vide order dated 26.09.2014 in Special Leave to Appeal (c) No.27945 of 2014 and order dated 05.02.2015 in Review Petition (C) No.2801 of 2014 in S.L.P. (C) No.27945 of 2014, the Writ Petition is allowed setting aside the order dated 16.08.2012 in Original Application No.9138 of 2011 on the file of the Andhra Pradesh Administrative Tribunal, Hyderabad, so also the proceedings in Rc.No.10713/DSC- 2011B2/2011, dated 19.11.2011 issued by respondent No.3. The respondents are consequently directed to consider the case of the petitioners/applicants for appointment as Secondary Grade Teacher (Urdu Medium) in DSC, 2011 in the existing /future vacancies or by creating supernumerary posts, if they are otherwise eligible, by relaxing their age, if it is so warranted. This exercise shall be completed within a 10 period of four months from the date of receipt of a copy of this order. There shall be no order as to costs of the Writ Petition.
Miscellaneous petitions, if any pending, in the Writ Petition, shall stand closed.
____________ AVSS, J ____________ CMR, J 14.08.2019 DRK 11 THE HON'BLE SRI JUSTICE A.V.SESHA SAI AND THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY WRIT PETITION No. 21215 of 2017 14.08.2019 DRK