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Andhra Pradesh High Court
Judges : P.RAMAKRISHNAM RAJU
V.Rajasekhar - Appellant
Versus
The Government Of A.P., rep.by its principal Secretary, LEN and TE department, Hyderabad - Respondent
Decided On : 09-13-96
EDUCATION - PRIVATE POLYTECHNIC - APPOINTMENT OF TEACHING STAFF - REGULARIZATION - SELECTION COMMITTEE - RETROSPECTIVE APPLICATION OF RULES - WRIT JURISDICTION - PUBLIC DUTY - AGREEMENT CONTRARY TO STATUTE - REGULARIZATION OF SERVICES - IMPLEMENTATION OF PAY SCALES - WRIT PETITION - MAINTAINABILITY - PREMATURITY.
Fact of the Case:
Petitioners, appointed as Lecturers/Asst. Lecturers/Associate Lecturers in a private polytechnic, challenged the institution's decision to issue notifications calling for applications for their posts and treating them as working on an ad hoc basis. They sought regularization of their services and implementation of revised pay scales.
Finding of the Court:
1. The A.P. Unaided Private Polytechnics (Establishment Management and Admission) Rules, 1992, issued under G.O. Ms. No. 247, dated 2-7-1992, are not ultra vires the A.P. Education Act in so far as the selection of staff is concerned. 2. The Rules cannot have retrospective effect and cannot apply to petitioners who were selected and appointed long before their coming into force. 3. The third respondent is amenable to the writ jurisdiction of the Court as it is entrusted with a public duty of imparting education. 4. An agreement entered into by the petitioners, contrary to the provisions of the Act, cannot affect their rights. 5. Petitioners who have worked for three years, including the break, till the date of filing the writ petition, shall not be terminated and shall be absorbed in regular vacancies without appearing before the Staff Selection Committee. 6. Petitioners who have not completed three years as of the writ petition filing date should appear before the Selection Committee. 7. The writ petition is maintainable and not premature as the petitioners have a right to challenge the notification calling for applications to fill their posts.
Issues: 1. Whether the A.P. Unaided Private Polytechnics (Establishment Management and Admission) Rules, 1992, are ultra vires the A.P. Education Act in so far as the selection of staff is concerned? 2. Whether the Rules can have retrospective effect and apply to petitioners appointed before their coming into force? 3. Whether the third respondent is amenable to the writ jurisdiction of the Court? 4. Whether an agreement entered into by the petitioners, contrary to the provisions of the Act, can affect their rights? 5. Whether petitioners who have worked for three years, including the break, till the date of filing the writ petition, should be terminated or absorbed in regular vacancies without appearing before the Staff Selection Committee? 6. Whether petitioners who have not completed three years as of the writ petition filing date should appear before the Selection Committee? 7. Whether the writ petition is maintainable and premature?
Ratio Decidendi: 1. The Rules are not ultra vires the Act as they fall within the Rule-making power of the Government under Section 20(3)(c)(i) of the Act. 2. The Rules cannot have retrospective effect as they apply only to educational institutions established after their coming into force. 3. The third respondent is amenable to the writ jurisdiction of the Court as it performs a public duty of imparting education. 4. An agreement contrary to the provisions of the Act cannot affect the petitioners' rights. 5. Petitioners who have worked for three years, including the break, till the date of filing the writ petition, should not be terminated and should be absorbed in regular vacancies without appearing before the Staff Selection Committee. 6. Petitioners who have not completed three years as of the writ petition filing date should appear before the Selection Committee. 7. The writ petition is maintainable and not premature as the petitioners have a right to challenge the notification calling for applications to fill their posts.
Final Decision: The writ petition was allowed to the extent that petitioners who have worked for three years, including the break, till the date of filing the writ petition, shall not be terminated and shall be absorbed in regular vacancies without appearing before the Staff Selection Committee. Regarding others who have not even completed three years by the date of filing of the writ petition, they should appear before the Selection Committee.
( 1 ) THE petitioners were appointed as Lecturers/asst. Lecturers/associate lecturers in the third respondent Polytechnic after calling for applications through advertisement in the newspapers and after proper selection observing rule of reservation. Since all of them are fully qualified, they are entitled to be regularized and they should be deemed to have been regularly appointed. They have been making representations to the respondents for implementation of revised Pay Scales of 1986 and 1993 as fixed by the Government. While so, the third respondent issued a notification on 4-3-1995 calling for applications for the posts held by the petitioners. The petitioners thereafter made a representation to the Commissioner and Director of Technical Education pointing out to the said advertisement. However, the third respondent issued another notification dated 9-3-1995 for the same purpose and published the same on 14-3-1995. The third respondent management had certified that all the petitioners were recruited as per qualification, and experience laid down by the aicte. When the petitioners threatened to go on strike, the management has agreed to withdraw the proposed action. But later it again issued a circular memo No. CRP/cpt/ SSC/95 dated 18-5-1995 treating the petitioners as if they were working on Ad hoc basis and they should make applications for regular appointment before 29-5-1995. The petitioners who have been working for several years cannot be thrown out and in fact there is an embargo on the retrenchment and termination under Section 80 of A. P. Education Act- hereinafter called the Act . Hence they filed this writ petition.
( 2 ) LATER by WP MP No. 10779 of 1996 fresh grounds are taken. The third respondent is relying on G. O. Ms. No. 100, Labour, Employment, Nutrition and technical Education (TE. 1) Department, dated 25-5-1984, but it is only an administrative instruction. As the third respondent-Polytechnic is not a Grant- in-Aid institution, this G. O. has no application. The A. P. Unaided Private polytechnics (Establishment Management an Admission) Rules, 1992 issued under G. O. Ms. No. 247 Education (TC) Department dated 2-7-1992 is ultra vires of the Act in so far as selection of staff is concerned. Sections 20, 21 or 99 of the act under which the Rules are purported to have been issued do not invest the government with the power to issue those Rules for constituting the Selection committee. In any event, the said rules cannot have retrospective effect and they cannot apply to the petitioners who were selected and appointed long before coming into force of these Rules. The third respondent by exerting threat and coercion obtained the signatures from the petitioners on the agreement dated 9-5-1995. Therefore, by way of amendment the petitioners are questioning G. O. Ms. No. 100 dated 25-5-1984 and the Rules made in g. O. Ms. No. 247, dated 2-7-1992 as ultra vires of the A. P. Education Act, and consequently to declare the purported agreement as illegal and void as it is contrary to the Statute.
( 3 ) THE respondent Nos. 1 and 2 have not filed any counter-affidavit.
( 4 ) THE third respondent in its counter-affidavit stated that the writ petition is not maintainable against a private institution. Under G. O. Ms. No. 767, labour, Employment, Nutrition and Technical Education Department, dated 28-10-1982 permission wasaccorded for establishment of the third respondent- polytechnic. According to the terms of the said G. O. , regular appointment of staff shall be made only through Staff Selection Committee. Composition of staff Selection Committee is indicated in para 9 of G. O. Ms. No. 100, Labour, employment, Nutrition and Technical Education Department, dated 26-3-1984 separately for teaching and non-teaching staff. The petitioners were taken only on Ad hoc/temporary basis, pending regular recruitment through a duly constituted Staff Selection Committee. Regarding implementation of 1986 Pay s
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