Telangana High Court
Farhat Anjum D/O Syed Khaja ... vs The Government Of Andhra Pradesh, on 11 April, 2022
Author: P. Madhavi Devi
Bench: P. Madhavi Devi
THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI
WRIT PETITION NO.23 OF 2013
ORDER
This Writ Petition is filed seeking a Writ of Mandamus declaring the action of the 3rd respondent in issuing the impugned proceedings vide Rc.No.A4/11385/2012, dt.03.11.2012 approving the absorption of the petitioner's post from unaided to aided post on prospective basis with effect from 03.11.2012 pursuant to the permission accorded by the 1st respondent vide G.O.Ms.No.85, Education (SE.PS1) Department, dt.20.09.2012 instead of approving the absorption of unaided post into aided post with effect from 01.10.2002 in terms of G.O.Ms.No.13, Education Department, dt.24.02.2003 on par with the similarly situated teachers working in the 4th respondent school as illegal and arbitrary and consequently declare that the petitioner is entitled to absorption into aided post with effect from 01.10.2002 in terms of G.O.Ms.No.13, Education Department, dt.24.02.2003 and pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case.
W.P.No.23 of 20132
2. Brief facts leading to the filing of this Writ Petition are that the petitioner was appointed as secondary grade teacher in an unaided post by the 4th respondent school with effect from 01.03.1998. The 4th respondent school was established with the permission of the competent authority, i.e., the 3rd respondent vide proceedings Rc.No.C5/1586/1985, dt.06.12.1985. It received grant-in-aid from the Government for 5 secondary grade teacher posts including the post of the petitioner based on the recommendations of the High Level Committee which was constituted under the Chairmanship of the 2nd respondent through G.O.Ms.No.13, Education (SE-PS2) Department, dt.24.02.2003 with effect from 01.10.2002 and the said order was immediately communicated by the 2nd respondent. The 2nd respondent vide his proceedings Rc.No.1338/B3-4/2002, dt.23.07.2003 approved the absorption of 4 unaided secondary grade teachers working in the 4th respondent school into grant-in-aid with effect from 01.10.2002 and the 3rd respondent issued consequential proceedings vide Rc.No.C1/3375/2003 dt.18.08.2003. The petitioner's case was recommended and the 2nd respondent called for additional information from the 3rd respondent vide letter dt.23.07.2003 requesting to clarify as to why he submitted proposals for release of grant in respect of the W.P.No.23 of 2013 3 petitioner herein since as per the record furnished by him one Mrs. Sarwar Sultana, SGT, is senior to the petitioner for taking necessary action in the matter. The 4th respondent replied to the 3rd respondent on 06.08.2004 along with documentary evidence through the Mandal Educational Officer, Jadcherla stating that Smt. Sarwar Sultana has resigned from service. Thereafter, the 4th respondent issued orders dt.17.08.2004 absorbing the petitioner into grant-in-aid post with effect from 01.10.2002 on par with similarly situated teachers working in the 4th respondent school.
3. In the meantime, the 1st respondent Government vide Government Memo No.12080/COSE/A4/2004 dt.20.10.2004 imposed a ban on recruitment of teachers into grant-in-aid posts, with retrospective effect and the same was challenged before the Courts. Thereafter, the 4th respondent again requested the 3rd respondent to approve the absorption of the petitioner from unaided to aided post on par with the similarly situated teachers working in the 4th respondent school in terms of G.O.Ms.No.13, Education Department, dt.24.02.2003 and issue necessary orders. Thereupon, the 3rd respondent forwarded the same through a letter dt.02.02.2008 to the 2nd respondent. However, since no W.P.No.23 of 2013 4 steps were taken by the 2nd respondent, the petitioner approached this Court and filed W.P.No.6103 of 2010 seeking direction to the respondents for absorption of the petitioner's post into grant-in-aid on par with the similarly situated teachers with effect from 01.10.2002. Pending adjudicdation of the said Writ Petition, the decision of the Hon'ble Supreme Court was rendered and ultimately, the Hon'ble Supreme Court in S.L.P.No.9541 of 2007 has held that the said Government Memo is applicable only prospectively. Accordingly, this Court disposed of the Writ Petition of the petitioner directing the respondents to pass orders as regards absorption of the unaided post held by the petitioner to aided post within a period of 4 weeks without reference to the ban. Thereafter, the respondents have passed the impugned order dt.03.11.2012 approving the absorption of the petitioner post from unaided to aided on prospective basis with effect from 03.11.2012 and challenging the same, this Writ Petition has been filed.
4. Sri P. Gangaiah Naidu, learned Senior Counsel appearing for the petitioner submits that even though the petitioner's post has been absorbed into grant-in-aid with effect from 01.10.2002, the impugned order dt.03.11.2012 giving effect to the said absorption only with W.P.No.23 of 2013 5 prospective effect is illegal and arbitrary. He submitted that in similar matters, this Hon'ble Court has held that since the Hon'ble Supreme Court has held that the Government Memo dt.20.10.2004 is only prospective in nature and not applicable to the posts granted for grant- in-aid posts prior to the said Government Memo dt.20.10.2004, the effect should be from the date of absorption and not from the date of passing of the order. A copy of the similar order is placed before this Court.
5. None was present for the respondents. However, on going through the counter affidavit filed on behalf of the respondents, it is seen that the respondents are only taking shelter under the Government Memo dt.20.10.2004 banning appointments in filling up of the aided posts in recognized aided schools. The Hon'ble Supreme Court in SLP No.9541 of 2007 has held that the said Memo is applicable only prospectively. The order of absorption of the petitioner is dated 17.08.2004 giving effect to her absorption with effect from 01.10.2002, whereas the Government Memo is dated 20.10.2004 and therefore it is subsequent to the absorption of the petitioner into the aided post. Therefore, while passing the order dt.03.11.2012, the respondents ought not to have held W.P.No.23 of 2013 6 that the absorption of the petitioner is applicable only prospectively. As held by a Coordinate Bench of this Court in W.P.No.8170 of 2009, the petitioner is entitled to be considered as working in the aided post with effect from 01.10.2022. A copy of the said order may be appended to this order for ready reference.
6. The Writ Petition is accordingly allowed. No order as to costs.
7. Pending miscellaneous petitions, if any, in this Writ Petition shall stand closed.
___________________________ JUSTICE P. MADHAVI DEVI Dt. 11.04.2022 Svv