B.Suresh Vs. State of Andhra Pradesh and O - Court Judgment

THE HONOURABLE Sr.JUSTICE B.CHANDRA KUMAR WRIT PETITION No.23567 of 2001 09-04-2014 B.Suresh BabuAppellant State of Andhra Pradesh and othersRespondent Counsel for the Petitioners:Sreeramachandra Murthy Counsel for the Respondents: G.P.for Higher Education : : ?.Cases Referred: THE HONBLE Sr.JUSTICE B.CHANDRA KUMAR Writ Petition No.23567 of 2001 & Contempt Case No.48 of 2014 Common Order:

- W.P.No.23567 of 2001 has been filed by the petitioner seeking a Writ of Mandamus declaring the notification dated 22.02.2002 issued by the third respondent without any consideration of the in-service candidates and the selection of the fourth respondent as illegal, arbitrary and violative of the principles of natural justice and for a direction to the consider the case of the petitioner herein for appointment in the aided vacancy in the third respondent college.

The petitioners specific case is that he belongs to Scheduled Caste community (SC-C).HE passed B.Com., in the year 1989-90 and M.Co.in the year 1992-93 an also a computer couRs.Data Pro Sleep 2 in the year 2001.

It appears that he has also acquired Ph.D.qualification.

Previously he was appointed as a lecturer in Priyardarshini College from July 1997 to July 2000.

Subsequently, he was appointed as Part-Time Lecturer in Commerce in the third respondent college at Visakhapatnam.

This institution is said to be a reputed institution in which several statesmen seems to have studied.

It appears that the principal and management of the third respondent college have certified that the petitioner has been working as lecturer in commerce against the aided vacancy since August, 2000 and his teaching has been appreciated by the students and the management.

The petitioner has also obtained M.Phil degree in commerce from Madhurai Kamaraj University and he had also obtained Ph.D.in HRM in the faculty of Commerce and Management from Acharya Nagarjuna University.

While so, the third respondent college issued notification dated 07.03.2001 inviting applications from eligible candidates to fill up the vacant posts, i.e., one post of lecturer in commerce under SC category.

There is a specific note in the said notification that preference will be given to the internal candidates in the college while making selections and to the candidates possessing M.Phil.

and Ph.D.and computer knowledge.

It appears that no selections have been made as per the said notification dated 07.03.2001.

Subsequently, the third respondent college issued another notification dated 16.08.2001.

However, there is no mention about the internal candidates in that notification and however, no selections have been made as per the second notification also.

Subsequently, the third respondent college issued third notification dated 30.08.2001 notifying 3 lecturer posts in commerce subject, i.e., 2 posts for SC-B and one post for SC-C categories.

No recruitment was done as per said notification also.

Again the third respondent college issued another notification on 23.02.2002 calling applications for one post of lecturer in commerce.

It appears that in pursuance of the latest notification, interviews were conducted in August, 2002 and the fourth respondent was selected.

Then, the petitioner filed this writ petition challenging the said notification and selection of the fourth respondent.

This Court, by order dated 16.11.2001, granted interim directions to continue the petitioner till regularly selected candidates are posted.

However, it was also observed that the said selection, in pursuance of the interviews, shall be subject to the final result of the writ petition.

However, by order dated 22.07.2002, it was clarified that the petitioner shall be continued in service.

Now, it is not in dispute that by virtue of the interim orders passed by this Court, the petitioner has been continuing in service.

Though the appointment of the fourth respondent is challenged and certain allegations have been made against him that he was debarred from certain examinations, sine it is submitted that there is one more vacancy of the post of lecture in commerce in the third respondent college to be filled up amongst the SC candidates, it is not necessary to go into the allegations made against the fourth respondent in this writ petition.

Moreover, the learned counsel for the fourth respondent informed that he is withdrawing the vakalat filed on behalf of the fourth respondent and as on today, the fourth respondent is not being represented by any of the counsel.

This Court, by order dated 30.04.2013 passed in the main writ petition, ordered as follows:- Sr.S.Sreeramachandra Murthy, learned counsel for the petitioner would submit that the appointment of the fourth respondent is questioned.

However, his case is that backlog vacancies are available, in which the case of the petitioner can be considered.

In the above circumstances, the respondents 1 to 3 are directed to consider the case of the petitioner, if any SC backlog vacancy is available, pending disposal of the writ petition.

On 11.10.2013, this Court, in WPMP No.36852 of 2013, passed order as follows:- Learned counsel for the petitioner filed a letter issued by the Correspondent, Mrs.A.V.N.College, Visakhapatnam, addressed to the Commissioner of Collegiate Education, Hyderabad, vide RC.No.06/2013-2014, dated 24.05.2013, stating that in Mrs.A.V.N.College (Day and Second shift) one SC and four ST backlog vacancies are available and accordingly, requested the Commissioner to consider the case of the petitioner as regular lecturer and he may be given appointment orders as grant-in-aid lecturer in Commerce in the said college.

According to the learned counsel for the petitioner, the case of the petitioner is not being considered only on the ground that there is no specific direction to absorb the petitioner in any backlog vacancy.

Having regard to the facts and circumstances of the case and having regard to 12 years of service put up by the petitioner, the order dated 30.04.2013 is modified as follows:- The respondents 1 to 3 are directed to absorb the petitioner in any SC backlog vacancy available, pending disposal of the writ petition.

The WPMP is accordingly ordered.

Learned counsel for the petitioner had placed the particulars of the backlog vacancy position before this Court.

As seen from the roaster and the records maintained by the third respondent college, the third respondent college has opened a Roaster Register.

In the year 1970, as against the roaster point Nos.2 and 16 which were reserved for Scheduled Caster candidates, OC candidates were working.

Similarly, in the year 1971, 1972, 1974, 1975, 1976, 1977, 1978, 1979 and 1980 as against roaster points 22, 27, 41, 52, 62, 66, 72, 77, 87, 91 and 97, OC candidates are working.

However, it appears that one K.Nageshwar Rao was appointed against the Roaster Point No.66.

Thus, the backlog position reveals that by the year 1996, there were 14 SC backlog vacancies.

As far as the Commerce department is concerned, there are two backlog vacancies and it appears that the fourth respondent was recruited against one SC backlog vacancy on 13.02.2003 and as of now, one backlog vacancy still exists.

It is most unfortunate that for several yeaRs.backlog posts are filled in by OC candidates.

Mere making a provision in the Constitution is not sufficient.

There should be will to implement the constitutional provisions to achieve the goals of the constitution.

Chapter IV of the Constitution of India prescribe the Directive Principles of State Policy.

Though the Directive Principles of State Policy are not enforceable on par with the fundamental rights guaranteed under Part III of the Constitution of India, but nevertheless, it is the duty of the Government to direct its policies and programmes in furtherance of achieving the goals set out by the Directive Principles of State Policy.

Article 41 of the Constitution of India is thus:- The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want Article 46 of the Constitution of India is thus:- The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.

Article 14 of the Constitution of India is thus:- The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

Article 15 (1) of the Constitution of India is thus:- 15 (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

Article 15 (4) of the Constitution of India is thus:- 15 (4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

Thus, the interests of the Scheduled Castes and Scheduled Tribes have to be protected by making special provisions for their social and economic advancement.

Article 16 of the Constitution of India says that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State, but however, Article 15(4) of the Constitution of India, enables the State to make special provisions in respect of Scheduled Castes and Scheduled Tribes.

It is the primary duty of the state to protect the fundamental rights and to provide the medical and education facilities to the citizens of this Country.

Irrespective of the economic status, every child of this country should get the best education.

However, when the private educational institutions have been permitted to establish, they have flourished and as on today, the education facility has become the costly commodity in the market.

Children coming from affluent families or who can offer huge fees or donations are getting admissions in the reputed private educational institutions even from play school level to the post graduate level including the engineering and medical colleges.

Unfortunately, the children coming from the poorer sections have to study in Government schools and colleges and in some private aided colleges, where reasonable fee is being charged.

It appears that in the private aided colleges, the Government has been giving aid by paying salaries to the teachers who are appointed in aided posts and to that effect, it appears that the burden is reduced on the students studying in those colleges.

The system of allowing the private educational institutions, private hostels along with the Government schools and colleges and Government hostels is ultimately resulting in flourishing of the private institutions and the educational institutions have become a big source of income resulting in accumulation of wealth in the hands of few.

Several directions have been given by the Apex Court with regard to the implementation of right to Education under Article 21(a) of the Constitution of India and with regard to the functioning of the private aided colleges and absorption of teachers working against the aided posts and there is un ending litigation causing great mental agony to all those concerned and particularly, the teachers who have been working since years together in aided posts.

Of course, there may be violations on the part of the educational institutions or on the part of the higher officials dealing with the subject or may be some inconsistent Government orders or some confusion, but however, the net result is that when there is no clear policy and clear directions, the litigation will increase.

Of course, it is for the State to formulate the policies and to see that the goals of the Constitution of India are achieved and the fruits of the results of development reach the common man and exploitation and corruption is reduced at all levels.

It is also clear that there should not be any discrimination in making appointments may be public appointment or appointments in aided colleges against the sanctioned posts.

Since the literacy rate appears to be low when compared with the developed countries, it appears that we have to march a long distance to achieve the goals of the Constitution and the aspiration of the people and the dreams of the freedom fighteRs.According to the learned counsel for the petitioner, there are three backlog vacancies against the roaster point Nos.81, 87 and 90 and the fourth respondent is appointed against the SC backlog vacancy in the year 2003.

Anyhow, the third respondent college is also not disputing that still one SC backlog vacancy is available in commerce department in their college.

The fact remains that the petitioner was not selected by the duly constituted selection committee.

It appears that the notification dated 30.08.2001 was issued and as per the said notification, the petitioner and others appeared for selection and he was placed at Sl.No.14 in the order of merit list as per the selection committee proceedings dated 26.03.2002.

Since then, he was continuing in service.

Now we are in 2014.

Twelve years period cannot be treated as short period.

It is most unfortunate situation.

The fate of other candidates in the seniority list is not known.

They are not before this Court.

Nobody has taken any interest to implead them.

They may not be aware of these proceedings.

The fourth respondent was given appointment in one SC backlog vacancy.

It appears that those who continue to struggle may get relief on one day or the other.

However, the fact remains that no steps were taken to fill up the backlog vacancies for years together and OC candidates were allowed to work in those posts.

The fact remains that the authorities did not object when the management appointed the petitioner against an aided vacancy (SC reserved vacancy).Fortunately or unfortunately, he continued to work in that post for the past 14 years may be by virtue of interim orders of this Court.

Having regard to the plight of scheduled caste candidates who have been working against the vacancy reserved for them, it appears that certain relaxations have been given in certain Government Orders vide G.O.Ms.No.214, General Administration (Ser.A) Department, dated 08.05.2001 and G.O.Ms.No.35 dated 27.03.2006, with regard to their qualifications and filling up SC backlog vacancies.

However, it appears that no comprehensive policy has been formulated to absorb them, as a result of which, though persons belonging to Scheduled Caste community have been working against the SC roaster point, their cases are not being considered though cases of similarly situated candidates other than SCs and STs are considered.

When the question of absorption comes, the colleges have been issuing fresh notifications and without giving any preference to the in- service candidates, recruitment process has been taken up.

It appears that allowing the management of the colleges to keep the posts reserved unfilled for years together and allowing the college managements to make appointments without following the due procedure has resulted in great injustice to the candidates who are already working against those roaster points and who are eligible to be appointed in those posts.

In fact, even while filling up the posts of unaided vacancies, the Government should issue necessary directions to the colleges to see that the recruitment procedure is strictly followed, i.e., there should be a Government representative in the Selection committee of selecting the lecturers even against the unaided posts.

This would avoid the illegal practices or the irregularities or the unwanted litigation in future.

No aided college should be allowed to recruit any lecturer against aided and unaided post without following the due procedure.

As discussed above, it is for the authorities to take proper decision and whenever it is noticed that a college is not taking up the recruitment process to fill up the aided posts and allowing any person to work in that post who is not duly selected for years together, the concerned authorities should take action against the management of such colleges.

Having allowed the person to continue to work against the aided vacancy for years together, particularly, against the backlog sanctioned vacancy, if the authorities, after a period of one decade or so, insist him to again go through the fresh selection process, it may cause great injustice to him.

As far as the qualifications of the petitioner herein is concerned, as on today, the petitioner appears to be qualified.

He had obtained Ph.D.degree.

It appears that as far as the candidates who have obtained Ph.D.degree, NET and SLET is not compulsory, particularly, in respect of the reserved candidates.

According to Sr.S.Sriramachandra Murthy, learned counsel for the petitioner, the petitioner has completed his M.Phil., as on 16.07.2009 and Ph.D.in August, 2009, therefore, the minimum qualification, as per the Gazetted notification of the Central Government dated 11.07.2009 and 17.07.2009, amending the minimum qualifications required for the appointments and career advancement of teachers in Universities and Institutions affiliated to it is not applicable to his case.

According to the learned counsel for the petitioner, the petitioner obtained M.Phil., on 16.07.2009 and, therefore, the 2006 regulations would apply to his case and regulations of 2009 would not apply to him.

According to the 2006 regulations, NET shall remain compulsory requirement for appointment as Lecturer even for those with Post Graduate Degree.

However, the candidates having Ph.D.degree in concerned subject are exempted from NET.

The candidate having M.Phil, degree in the concerned subject are exempted from NET.

Nobody can be held responsible for the delays caused in disposal of the cases.

The delay in Court proceedings shall not cause any prejudice or injustice to any person.

Whatever reason it may be, admittedly, the petitioner herein has been working in the aided post as Part-Time lecturer since 2000 and he is continuing in the said post.

When it was brought to the notice of this Court that the fourth respondent and one Srinivas Rao were selected for the post of lecturer in commerce under SC backlog vacancy, this Court directed to consider the case of the petitioner, if any backlog vacancy is available in the third respondent college, pending disposal of the main writ petition.

As far as the persons who are appointed prior to the year 1990 and were working in 1993, the Government issued a scheme for regularisation of part time lecturer working in private aided colleges vide G.O.Ms.No.328, Education (CE.III) Department, dated 15.10.1997 with the conditions that the part time lecturers who possess PG in the relevant subject with 55% of marks and put in 360 days and 3 academic years as on 30.07.1991 or 5 academic years and 600 days as on 25.11.1993 with or without breaks and also continuing in service as on the date of issue of these ordeRs.are re-eligible for regularisation of their services.

They should be within stipulated age limit as on the date of entry into private aided colleges.

Government in G.O.Ms.No.283, Educatio (CE.II) Department dated 03.11.1999 informed that the purpose of the above scheme has been achieved and the Government annulled the scheme formulated in G.O.Ms.No.328 Education dated 15.10.1997.

Since the petitioner was appointed in the year 2000, the above referred GO appears to be not applicable to the case of the petitioner.

Rejecting the claim of the petitioner on the ground that he does not satisfy the conditions stipulated in the above referred GOs appears to be not correct since his case does not come within the category of candidates covered by the said G.Os.

The Government, by issuing GO Ms.No.214 General Administration (Ser.A) Department dated 08.05.2001, relaxed certain conditions as far as the SC and ST candidates are concerned and the condition of holding written examination and interview have been relaxed for limited recruitment of SC and ST candidates.

The above referred GO makes it clear that the selection of such limited recruitment of SC and ST candidates can be made on the basis of the marks obtained in the qualifying academic examination.

As far as the petitioner is concerned, he appeared before the Selection Committee on 30.08.2002 for selection to the post of aided lecturer in commerce and he was placed at Serial No.14 in the order of merit of the candidates.

As far as the in-service candidates are concerned, i.e., those who have been working for a period of decade, the Government should have evaluated some policy.

It is not in dispute that as far as the petitioner is concerned, he has been working in the sanctioned post of SC category since August, 2000.

In view of the peculiar circumstances of this case and in view of the fact that the petitioner herein has been continuing in service by virtue of the interim orders passed by this Court and since no person can be held responsible for the delays caused in disposal of cases by the Courts and since no one should loose his bread and butter merely because matters have been pending before the Courts for years together, I feel that the case of the petitioner has to be considered.

At this stage, if some other person is appointed in the place of the petitioner against a SC backlog vacancy, it may adversely affect his right to life guaranteed under Article 21 of the Constitution of India.

The petitioner may not be in a position to secure some other job after working for a decade in the third respondent college in view of his age and other circumstances.

He may be permanently denied the opportunity to secure a job anywhere.

In the absence of any specific policy to deal with the similar cases, I direct the respondents to consider the case of the petitioner and absorb the petitioner in the SC Backlog vacancy against which he has been working since fourteen long years as on today However, this shall not be taken as a precedent in any other cases and it is for the Government to formulate the policies and issue fresh guidelines.

Specific directions have to be issued to see that no such post shall be filled up without following the due procedure and without being selected by the Selection Committee having a Government representative.

In the result, W.P.No.23567 of 2001 is allowed directing the respondents to consider the case of the petitioner and absorb him in the SC Backlog vacancy, within a period of sixty (60) days from the date of receipt of copy of this order.

In view of the orders passed in W.P.No.23567 of 2001 supra, no purpose will be served in still continuing the contempt proceedings against the respondents.

Accordingly, C.C.No.48 of 2014 is closed.

There shall be no order as to costs in the writ petition and in the contempt case.

Miscellaneous petitions, if any, pending in the writ petition and the contempt case shall stand closed.

___________________________ Justice B.Chandra Kumar 09th April, 2014