Smt. D. Bharatha Laxmi v. The Director, Board of Intermediate Education, Nampalli, Hyderabd

Order

The action of the respondents, in not counting the pre-selection service of the petitioner, from August 1986 till his regularization on 06.04.1998, for the purpose of fixation of pay scales and pensionary benefits, is impugned in this writ petition as arbitrary, illegal and in violation of Articles 14 and 16 of the Constitution of India. Petitioner seeks a consequential direction to the respondents to count the pre-selection service, from the date of his initial appointment as a part-time lecturer, for the purpose of retiral benefits and for grant of increments.

2. Facts, to the extent necessary for this writ petition, are that the petitioner, a post graduate in political science, was appointed as a part-time lecturer in Civics at S.R.Y.S.P. Junior College, Challapalli in the month of August, 1986. G.O.Ms.No. 302 dated 23.08.1991 prescribed the procedure for regularization of the services of part-time lecturers, working in Private Degree/Junior Colleges, by way of a limited recruitment by duly constituted selection committees. The G.O. prescribed a selection procedure for conducting tests and for implementation of the rules of reservation. Under para-8 of the said G.O, after proceedings were issued by the Regional Joint Director of Higher Education, the Principals/Correspondents of the Private Degree Colleges/Junior Colleges were required to submit details of the vacancies along with the work load, discipline wise, within 15 days from the date of issuance of the proceedings by the Regional Joint Director of Higher Education. The Regional Joint Director of Higher Education was required to arrive at the number of vacancies, subject-wise, and intimate the vacancies to the A.P. College Service Commission.

3. The Regional Joint Director issued proceedings on 11.02.1991, and in the annexure enclosed thereto, one post of Junior Lecturer in Civics was shown as vacant in the 4th respondent College. It is the petitioner’s case that despite a vacancy being available, the 4th respondent did not notify the said vacancy and as a result the petitioner could not apply for the said post, despite the fact that she was working in a post to which grant-in-aid was admitted, with effect from

01.06.1984, as per G.O.Ms.No. 527 dated 10.12.1984. Petitioner refers to the case of other colleges such as Sri Padmavathi Mahila Hindu Junior Kalasala, Machilipatnam, wherein the vacancy notified, as per G.O.Ms.No. 302 dated

23.08.1991, was filled up with the appointment of one Smt. V. Bharathi Devi, who was earlier working in the said college as a part time lecturer in Chemistry. Smt. V. Bharathi Devi was appointed, vide proceedings dated 22.08.1994, in accordance with the provisions of G.O.Ms.No. 302 dated 23.08.1991, on a permanent basis and continued to work as a permanent lecturer thereafter. Petitioner would contend that since the 4th respondent did not notify the vacancy, she could not get the benefit which was given to Smt. V. Bharathi Devi and as a result she continued to remain a part time lecturer till her services were regularized, by proceedings dated 06.04.1998.

4. G.O.Ms.No. 362 dated 07.10.1994, which also provided for regularization of part-time Lecturers and Junior Lecturers working in private aided Degree/Junior Colleges was kept in abeyance vide proceedings dated 06.01.1995. Petitioner contends that despite proposals being submitted by the 4th respondent management, prior to the said G.O.Ms.No. 362 dated 07.10.1994 having been kept in abeyance, the respondents did not consider her case for regularization. According to the petitioner it is only pursuant to her representations, on

20.11.1996 and 18.06.1997, that her services were regularized with effect from

06.04.1998. Petitioner would refer to the statement prepared by the 4th respondent College, whereunder the differential salary, from July 1992 to October 1994, of Rs.15,887-30 Ps was shown as due to her, and contend that she is entitled for regularization with effect from her initial selection in August 1986 and that she cannot be put to loss for failure either on the part of the 4th respondent management in taking effective steps to notify the vacancy pursuant to G.O.Ms.No. 302 dated 23.08.1991 or the official respondents to promptly consider the proposal submitted by the 4th respondent under G.O.Ms.No. 362 dated 07.10.1994, prior to its being kept in abeyance on

06.01.1995. The petitioner would also refer to Sri D. Srinivas, working as a part time lecturer in Civics in B.S & V.K.R.M. Junior College, Nuthalapadu, Prakasam District, whose services were regularized under G.O.Ms.No. 362 dated 07.10.1994. Petitioner would contend that denying her the benefit of regularization of services, given to Sri D. Srinivas and Smt. V. Bharathi Devi, was discriminatory.

5. A Counter-affidavit is filed, on behalf of respondents 1 to 3, by the then Director of Intermediate Education, wherein it is stated that the petitioner was initially appointed by the 4th respondent as a part-time lecturer in Civics in August 1986 purely on a temporary basis without the knowledge of the Director of Intermediate Education and without following the recruitment procedure prescribed in G.O.Ms.No. 1023 dated 04.11.1976. It is stated that the petitioner was appointed by the management of the college on the specific condition that she would not claim regular appointment in the College. Reference is made to the procedure, for limited recruitment, in G.O.Ms.No. 302 dated 23.08.1991 and that the 4th respondent College had submitted proposals, of the petitioner, to the Regional Joint Director of Higher Education for confirmation of the vacancy in the College. The Regional Joint Director, vide proceedings dated 11.02.1993, confirmed the vacancy and requested the 4th respondent to take further action strictly in accordance with the orders issued in G.O.Ms.No. 302 dated

23.08.1991 which, among others, required the 4th respondent to send detailed applications of eligible part-time Junior Lecturers, working against aided vacancies as communicated by the Regional Joint Director, to the A.P. college service commission for conducting the teaching test. It is stated that the 4th respondent did not notify the vacancy along with the petitioner’s application to the A.P. Public Service Commission, Hyderabad and instead published a notification in daily news paper on 20.11.1993, for appointment of Junior Lecturers, deviating from the procedure prescribed in the said G.O. and that the 4th respondent did not make recruitment pursuant to the said notification. It is stated that the government, in G.O.Ms.No. 362 dated 07.10.1994, had issued orders for sanction of the minimum of the pay scale to part-time Junior Lecturers, who were working against regular posts with work-load of 16 periods per week, had put in five years of service as on 25.11.1993, had completed five academic years of service as on that date and were working on the date on which the said G.O. was issued. The 1st respondent communicated the said G.O. to all Correspondents of private aided junior colleges in the State with instructions to submit proposals, if any, for sanction of the minimum pay to eligible part-time junior lecturers of the respective Colleges. It is contended that the 4th respondent did not submit any proposals for sanction of the minimum of the pay scale under the said G.O. It is stated that G.O.Ms.No. 362 dated

07.10.1994 was kept in abeyance, vide Government memo dated 06.01.1995, and that, in the absence of specific sanction orders from the 1st respondent duly sanctioning the minimum pay scale to the petitioner, salary in the minimum pay scale could not be released. It is stated that, in supercession of the orders issued in G.O.Ms.No. 362 dated 07.10.1994, the government issued G.O.Ms.No. 328 dated 15.10.1997 for regularization of the services of part-time Junior Lecturers who had fulfilled the conditions stipulated therein. It is stated that the fourth respondent submitted proposals for regularization of the services of the petitioners through the Regional Joint Director concerned, that the 1st respondent, in turn, had submitted regularization proposals of the petitioner to the Secretary, A.P. College Service Commission through the Regional Joint Director, had obtained concurrence and accordingly the petitioner’s services were regularized, as Junior Lecturer, with effect from 06.04.1998. Respondents would contend that since the petitioner was appointed earlier by the fourth respondent, on a temporary basis, without following the recruitment procedure, without prior permission from the first respondent and as the petitioner’s case was considered for regularization, vide G.O.Ms.No. 328 dated 15.10.1997, with effect from 06.04.1998, from which date she was admitted into grant in aid, her pre-approved service cannot be considered for the purpose of pay fixation even notionally or for the purpose of pension and that it is the policy of the government to regularize the services of part time lecturers/junior lecturers prospectively, in terms of G.O.Ms.No. 78 dated 15.03.1996, and according to para-9(10) of G.O.Ms.No. 328/Edn. dated 15.10.1997.

6. A counter-affidavit is filed on behalf of the fourth respondent, wherein it is stated the management had submitted work-load particulars, with supporting documents, to the Regional Joint Director, Rajahmundry, as stipulated in G.O.Ms.No. 302 dated 23.08.1991 and that, after verifying the proposals, the Regional Joint Director, in his letter dated 11.02.1993, had intimated the vacancies subject-wise as noted against each College, according to which the post of Junior Lecturer in Civics was a clear vacancy. It is stated that the management issued recruitment notification for filling up the post, of Junior Lecturer in Civics, in Andhra Jyothi Daily News Paper on 20.11.1993 inviting applications from eligible candidates. It is stated that the post of junior lecturer in civics was admitted to grant-in-aid from 1st June 1984, that the petitioner’s services were regularized, under G.O.Ms.No. 328 dated

15.10.1997, that when the matter was pending with the college service commission, the government issued G.O.Ms.No. 362 dated 07.10.1994 changing the recruitment procedure and that, as per G.O.Ms.No.362 dated

07.10.1994, the Management had submitted proposals, in their letter dated

10.11.1994, to the Director of Intermediate Education for regularization of the services of the petitioner and that of Sri T. Sambasiva Rao. It is stated that the petitioner’s pay was fixed in the minimum of the Junior Lecturers time scale, the arrears statement was submitted to the Director, claiming Rs.15,887.30Ps on her behalf as arrears due as on 10.11.1994 and that the matter is pending with the Commissioner of Intermediate Education.

7. Sri V.S.R. Anjaneyulu, learned Counsel for the petitioner, would contend that the petitioner is entitled to have her services regularized from the date of her initial appointment in August 1986, since an aided vacancy was available in the fourth respondent College even prior to the date of her initial appointment. Learned Counsel would contend that the petitioner was entitled to have her services regularized, either under G.O.Ms.No. 302 dated 23.08.1991 or G.O.Ms.No. 362 dated 07.10.1994, and that she cannot be put to loss for the inaction of the respondents in not regularizing her services in accordance with the said G.Os. Learned Counsel would further contend that since G.O.Ms.No. 362 dated 07.10.1994 was issued in the name of the Governor, it cannot be kept in abeyance by way of the memo dated 06.01.1995, that G.O.Ms.No.362 dated 07.10.1994 must be deemed to continue to remain in force and that the petitioner must, atleast, be regularized under the said G.O. Learned Counsel would place reliance on K. Rajyalaxmi Vs. District Treasury Officer, Eluru in this regard. He would further contend that, in accordance with G.O.Ms.No. 302 dated 23.08.1991, the petitioner had submitted her application to the Regional Joint Director of Higher Education, receipt of which was acknowledged on

23.11.1993, as the petitioner had complied with the procedural requirement of G.O.Ms.No. 302 dated 23.08.1991 she cannot be made to suffer for the inaction of the respondents in not complying with the other conditions prescribed therein and that she is entitled for regularization under the said G.O. Learned Counsel would refer to the proceedings of the Director of Intermediate Education, dated

16.07.1994, whereunder the services of Smt. V. Bharathi Devi, Junior Lecturer in Chemistry in Sri Padmavathi Mahila Hindu Junior Kalasala, Machilipatnam was regularized under G.O.Ms.No. 302 dated 23.08.1991. Learned Counsel would contend that since the fourth respondent had sent the proposals, in accordance with G.O.Ms.No. 362 dated 07.10.1994, vide letter dated

10.11.1994, much prior to 06.01.1995 when G.O.Ms.No.362 dated 07.10.1994 was kept in abeyance, in case the official respondents had acted with promptitude her services could have been regularized atleast under G.O.Ms.No. 362 dated 07.10.1994. Learned Counsel would contend that the petitioner is entitled to have her services regularized under either of the two G.Os of the government and for payment of arrears of her salary.

8. The government pleader for higher education contends that since the petitioner was appointed, as a part-time lecturer on temporary basis, contrary to the rules, such appointment would not confer any right on her to claim that she should be appointed regularly in an aided post. Learned government pleader would refer to the orders issued in G.O.Ms.No. 302 dated 23.08.1991 and contend that while applications of candidates was required to be forwarded to the A.P. College Service Commission, the fourth respondent had, instead, issued a notification inviting applications and had thereby not complied with the procedure prescribed in G.O.Ms.No. 302 dated 23.08.1991. According to the learned government pleader since the selection committee, constituted under G.O.Ms.No. 302 dated 23.08.1991, was required to make selections and inasmuch as the petitioner’s application was not forwarded by the 4th respondent to the A.P. College Service Commission, the question of selecting the petitioner did not arise and the petitioner was not entitled to claim regularization under G.O.Ms.No. 302 dated 23.08.1991.

9. Learned government pleader would refer to G.O.Ms.No. 362 dated

07.10.1994, and the relevant portion of the Counter-affidavit to emphasize that no proposals, pursuant thereto, had been received from the fourth respondent. According to the learned government pleader, the averments to the contrary in the Counter-affidavit filed by the fourth respondent was incorrect. Learned Government Pleader contends that inasmuch as no proposals were received from the fourth respondent, during the period when G.O.Ms.No. 362 dated

07.10.1994 was in force, and inasmuch as the said G.O. was kept in abeyance by government memo dated 06.01.1995, the question of considering the petitioners case, in accordance with G.O.Ms.No. 362 dated 07.10.1994, did not a r i s e . Learned government pleader would submit that, unlike in K. Rajyalakshmi1, there is no challenge in the present writ petition to the validity of the government memo dated 06.01.1995 and in the absence of any plea in this regard or a specific prayer to have the government memo set aside, the question, as to whether G.O.Ms.No. 362 dated 07.10.1994 could be kept in abeyance by way of government memo dated 06.01.1995, did not fall for consideration. Learned government pleader would submit that, in accordance with G.O.Ms.No. 328 dated 17.10.1997, the petitioner’s services were regularized with effect from 06.04.1998. She would refer to Clause-10 of the said G.O. to contend that a part-time or temporary lecturer can be said to have been regularly appointed only from the date of which orders of regularization are issued in this regard. Learned government pleader would seek application of the doctrine of approbate and reprobate and contend that inasmuch as the petitioner had received the benefit of regularization, under G.O.Ms.No. 328 dated 15.10.1997, she was not entitled to raise any contention contrary thereto and after her services were regularized on 06.04.1998 to seek regularization from an anterior date. Learned government pleader would contend that, in any event, no teacher/lecturer has the right to seek a mandamus from this Court directing the government to provide grant-in-aid and that the government cannot be mulcted with financial liability which would be the result if the services of the petitioner were to be regularized retrospectively.

10. Before the rival contentions are examined, it is necessary to refer to the relevant government orders.

11. The Government, vide G.O.Ms.No. 302 Education (CEI) Department dated

23.08.1991, prescribed the procedure for limited recruitment of adhoc and part- time lecturers working in private Degree/Junior Colleges. The said G.O. prescribed the eligibility criteria for appointment of lecturers in degree/junior Colleges, the composition of the selection committee, the procedure for conducting teaching test and the rule of reservation. Para-4 thereof required the Regional Joint Director to call for information regarding vacancies in the posts of Lecturers/Junior Lecturers from the principals/correspondents of private degree/private junior colleges, who were required to submit details of the vacancies along with the work load, discipline wise, within 15 days from the date of issue of the proceedings of the Regional Joint Director. On receipt of the vacancy position and the workload, the Regional Joint Director was required to arrive at the number of vacancies, subject wise, and intimate the vacancies A.P. College Service Commission. The Principals/Correspondents were required to notify the vacancies to the employment exchange and 15 days thereafter to publish the vacancies in a daily newspaper intimating roster point. In response the said advertisement, adhoc/part-time lecturers, working in private colleges, were required to apply to the principals/correspondents of the colleges concerned, who in turn were required to scrutinize the applications and the documentary evidence pertaining to qualifications, memorandum of marks, P.G. degree, teaching experience, and counter signature of the Regional Inspector/Regional Joint Director. Thereafter the principals/correspondents of the private Colleges were required to send details of the vacancies, as communicated by the Regional Joint Director, to the A.P. College Service Commission, along with the applications submitted by the part time lecturers, to enable them to conduct a teaching test and to select candidates. On receipt of such applications the selection committee, constituted under G.O.Ms.No.302 dated 23.08.1991, was required to conduct the teaching test and communicate the list of selected lecturers, subject-wise, to the Director of Collegiate Education and Regional Joint Director for Higher Education for onward transmission Principals/Correspondents of the private colleges for issuing appointment orders to the selected lecturers.

12. The detailed procedure prescribed in G.O.Ms.No. 302 dated 23.08.1991 required the fourth respondent college to forward the petitioner’s application, along with duly attested documents, to the A.P. College Service Commission to conduct the teaching test to determine as to whether the petitioner could be selected for appointment to the regular post of lecturer. It is not in dispute that the fourth respondent did not forward the petitioner’s application to the A.P. College Service Commission and in the absence of receipt thereof, neither the government nor the A.P. College Service Commission can be held responsible for not selecting the petitioner for appointment as a lecturer under G.O.Ms.No. 302 dated 23.08.1991.

13. The government issued G.O.Ms.No. 362 dated 07.10.1994 for payment of salary calculated in the minimum of the pay scale and for regularization of the services of part- time lecturers working in private aided degree colleges. The said G.O. required the Secretaries/Correspondents of private aided Colleges in the State to immediately submit proposals for regularization of services of part time lecturers working in their College and to satisfy the stipulated conditions. Information was required to be furnished in the enclosed proforma along with the prescribed documentary evidence. The scheme of regularization, as prescribed in G.O.Ms.No. 362 dated 07.10.1994, was kept in abeyance by government memo dated 06.01.1995. While the fourth respondent in the counter-affidavit stated that, pursuant to G.O.Ms.No. 362, dated 07.10.1994, they had submitted proposals, in letter RC.No. 31-A1/94-95 dated 10.11.1994, to the Director of Intermediate Education for regularization of the services of the petitioner and that the matter was pending with the Commissioner of Intermediate Education, the Director of Intermediate Education, in the counter- affidavit filed on behalf of respondents 1 to 3, would assert that the fourth respondent had not submitted any proposals for sanction of minimum scale of pay of the petitioner. Since facts, regarding the proposal submitted by the fourth respondent, are in dispute, the learned government pleader produced the records, which were also made available for perusal of Sri V.S.R. Anjaneyulu, learned Counsel for the petitioner. The file produced before this Court is paginated and at page 51 is a Xerox copy of the proposals submitted by the fourth respondent dated 10.11.1994. While Sri V.S.R. Anjaneyulu, learned Counsel for the petitioner, would contend that the Xerox copy at page No. 51 is proof of the fact that the fourth respondent had submitted the proposal, learned Government Pleader would refer to page 57 ie., the letter of the fourth respondent College dated 29.09.2003, to contend that the Xerox copy of the proposal dated 10.11.1994 is one among the annexures to this letter dated

29.09.2003 and that no proposal was received in the year 1994. Since there is a serious dispute in this regard, learned Counsel for the fourth respondent was asked to produce the acknowledgment regarding receipt of the said proposals by the government. However no such acknowledgment was produced before this Court. It is therefore doubtful as to whether the fourth respondent had, in fact, submitted the said proposal in November 1994.

14. Be that as it may, the fact remains that G.O.Ms.No. 362 dated 07.10.1994, pursuant to which the fourth respondent is said to have submitted its proposal on 10.11.1994, was itself kept in abeyance on 06.01.1995. The petitioner did not choose to question the inaction of the respondent in not regularizing her services, in accordance with G.O.Ms.No. 362 dated 07.10.1994, for five long years and the several pleas raised in this regard in this writ petition are liable to be rejected on the ground of latches.

15. With regards the contention that G.O.Ms.No. 362 dated 07.10.1994, was issued in the name of Governor, it is in the nature of executive instructions issued under Article 162 of the Constitution of India and that it cannot be kept in abeyance by way of a government memo, the fact remains that no such plea has been taken in this regard in the affidavit filed in support of the writ petition nor is the government memo dated 06.01.1995 under challenge in this writ petition. Reliance placed on the judgment of this Court in K. Rajyalakshmi1 is misplaced inasmuch as, in the said writ petition, this question was specifically in issue.

16. The petitioner did not question the inaction of the respondents or their failure to regularize her services, pursuant to G.O.Ms.No. 362 dated

07.10.1994, till her services were regularized subsequently vide G.O.Ms.No. 328 dated 15.10.1997, with effect from 06.04.1998. Clause 10 of G.O.Ms.No. 328 dated 15.10.1997 specifically provides that the date of regularization shall take effect from the date of issue of such order of regularization by the Commissioner of Collegiate education/ Commissioner and Director of Intermediate Education as the case may be. Since the order of regularization was issued on 06.04.1998, regularization of services of the petitioner takes effect only from 06.04.1998 and not prior thereto. Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument. (R.N. Gosain Vs. Yashpal Dhir, Halsburey’s laws of England) Having obtained the benefit of regularization under G.O.Ms.No. 328 dated

15.10.1997, the petitioner is estopped from seeking an anterior date of regularization contrary to what has been specifically provided for in Clause 10 of G.O.Ms.No. 328 dated 15.10.1997.

17. The plea of discrimination and the claim of parity with Smt. V. Bharati Devi and Sri D. Srinivas must also be rejected. These two persons, whom the petitioner did not even choose to arraign as respondents in the present writ petition, were admittedly working in other colleges. No factual foundation has been laid as to whether the conditions stipulated in G.O.Ms.No. 302 dated

23.08.1991 and G.O.Ms.No. 362 dated 07.10.1994 had been complied with when their services were regularized. The mere fact that the respondent authorities had passed a particular order in the case of other persons similarly situated can never be the ground for issuing a writ in favour of the petitioner, on the plea of discrimination. It is more appropriate and convenient to examine the entitlement of the petitioner before the court to the relief asked for, in the facts and circumstances of his case, than to enquire into the correctness of the order made or action taken in another person’s case, which other person is not before the court nor is his case. (Chandigarh Administration Vs. Jagjit Singh)

18. Even otherwise the relief sought for in the writ petition, in effect, would require the government to provide grant-in-aid to the fourth respondent College to enable payment of salary to the petitioner retrospectively, anterior to her actual date of regularisation.

19. The Supreme Court, in STATE OF ASSAM v. AJIT KUMAR SARMA, held that: “…….What grant the State should make to private educational institutions and upon what terms are matters for the State to decide. Conditions of these grants may be prescribed by statutory rules; there is however no law to prevent the State from prescribing conditions of such grants by mere executive instructions which have not the force of statutory rules……..Where such conditions of grant-in-aid are laid down by mere executive instructions, it is open to a private college to accept those instructions or not to accept them. If it decides not to accept the instructions it will naturally not get the grant-in-aid which is contingent on its accepting the conditions contained in the instructions. On the other hand, if the college accepts the conditions contained in the instructions, it receives the grant- in-aid. If however having accepted the instructions containing the conditions and terms, the college does not carry out the instructions, the Government will naturally have the right to withhold the grant-in-aid. That is however a matter between the Government and the private college concerned. Such conditions and instructions as to grant-in-aid confer no right on the teachers of the private colleges and they cannot ask that either a particular instruction or condition should be enforced or should not be enforced. It is only for the Governing Body of the College to decide whether to carry out any direction contained in mere administrative instructions laying down conditions for grant-in-aid. Further it is open to the Governing Body not to carry out any such instruction which is not based on rules having statutory force, and it will then be naturally open to the State to consider what grant to make. But if the Governing Body chooses to carry out the instruction, it could hardly be said that the instruction was being carried out under any threat. It is certainly not open to a teacher to insist that the Governing Body should not carry out the instruction. The rules for the purpose of grant-in-aid being - as in this case - merely executive instructions confer no right of any kind on teachers and they cannot apply to the High Court for a mandamus asking for the enforcement or non-enforcement of the rules, even if indirectly there may be some effect on them because of the grant-in-aid being withheld in whole or in part. Such mere administrative instructions even though called rules are only a matter between the Governing Body and the State through the Director and cannot in our opinion form the basis of a petition for writ under Art. 226 by a teacher…..” (emphasis supplied).

20. This judgment of the Apex Court in Ajit Kumar Sharma was followed by a Division Bench of this court in Y.SIDDA REDDY v. GOVERNMENT OF ANDHRA PRADESH. The law laid down in the aforesaid judgments is that the conditions or instructions as to grant-in-aid confer no right on teachers of private colleges and they cannot apply to the High Court for a Mandamus asking for enforcement of the instructions providing grant-in-aid even if, indirectly, there may be some effect on them because of the grant-in-aid being withheld in whole or in part. No mandamus can be issued, at the behest of a teacher, directing the government to provide grant-in-aid. No relief can therefore be granted in favour of the petitioner.

21. The writ petition fails and is accordingly dismissed. However in the circumstances without costs. Date: .02.2006 ____________________________ RAMESH RANGANATHAN, J MRKR