1991 Supreme(AP) 263

Andhra Pradesh High Court
Judges : M.N.RAO, V.SIVARAMAN NAIR
Vasavi College of Engineering, hyderabad - Appellant
Versus
A.Suryanarayana - Respondent
Decided On : 07-09-91

Termination of service of a temporary employee found to be unfit for regular appointment does not require prior approval under the provisions of Section 83 of the A. P. Education Act.

Headnote:

EDUCATION - SERVICE - TERMINATION - RETRENCHMENT - PRIOR APPROVAL - NECESSITY - A. P. EDUCATION ACT, 1982, SEC. 83.

Fact of the Case:

Petitioner was appointed as an Assistant Professor in Civil Engineering in the Vasavi College of Engineering, by order dt. 28. 12. 83. That appointment was temporary. He was paid a salary of Rs. 1840/- which was very nearly the maximum in the scale of Rs. 1200-50-1300-60-1900. The order of appointment stated that he should appear before a Selection Committee for regular appointment. On 12. 2. 84 the 3rd respondent issued a notification inviting applications for appointment as Professor in the department of civil Engineering. Petitioner applied on 21-2-84 and appeared before a duly constituted selection committee on 28-7-84. But he was found unfit for appointment as professor. There was a condition attached in the advertisement that if a candidate was found not suitable to the post of professor, he might be considered for appointment in the lower post The Selection Committee did not consider him for regular appointment as Assistant Professor, but continued him in employment. By order dt. 10. 5. 1985, 3rd respondent informed the petitioner that he was relieved with immediate effect from his temporary appointment, evidently as a measure of retrenchment. Petitioner filed Writ Petition No. 7133/85 and obtained an order of stay of his relief. The 3rd respondent filed a counter affidavit contending that the petitioner was only a temporary appointee, that he was not found fit for regular appointment as a Professor and therefore termination of his service was proper. 3rd respondent also submitted that termination of service of a person who was found unfit for appointment could not be retrenchment and that any such temporary appointee could not insist upon continuance in service.

Finding of the Court:

The court held that the very order dt. 10. 5. 85 indicated that the order was an order of retrenchment. The learned judge found the fact that the petitioner was appointed temporarily as an Assistant professor or that he was not found fit to be appointed as a Professor was no justification for terminating his service. The Court held further that the termination of his service could have been effected only with the prior approval of the competent authority or the next higher authority as the case may be, as provided under Section 83 of the Andhra pradesh Education Act. The learned Judge also observed that there was substance in the contention of the petitioner that even on initial appointment, he was granted pay of rs. 1840/-, almost equal to the maximum, indicated that he was being rewarded for his rich experience as a lecturer for over a period of sixteen years. Yet another observation of the learned judge was that in view of the fact that he was already holding the post of an Assistant Professor, though on a temporary basis, the respondent was duty bound to consider him at least for that post, if he was not found suitable for the post of Professor for which he had applied. It was therefore held that the termination of service of the petitioner was arbitrary.

Issues: Whether the termination of service of a temporary employee found to be unfit for regular appointment requires prior approval under the provisions of Section 83 of the A. P. Education Act.

Ratio Decidendi: 1. The court held that the provisions of the A. P. Education Act, 1982 apply to teachers appointed by the 3rd respondent, even though the engineering College conducted by the 3rd respondent has not been receiving aid from the Government. 2. The court held that the order of temporary appointment, though temporary in nature, did not contain a condition that such temporary appointment was terminable, if the petitioner was not selected for regular appointment. In the absence of such a condition, and if no regular appointment was made to the post which the petitioner was holding, his temporary appointment would continue until validly terminated. 3. The court held that the management was bound to obtain prior approval of the competent authority before it passed the order dt. 10. 5. 1985 terminating the service of the petitioner. 4. The court held that termination of service of a temporary employee found to be unfit for regular appointment does not require prior approval under the provisions of Section 83 of the A. P. Education Act.

Final Decision: The court dismissed Writ Appeal No. 454/86 and allowed Writ Petition No. 4172/87. The 1st respondent in W. P. 4172/87 was directed to pay costs to the petitioner inclusive advocate’s fee of Rs. 500/- in all in the appeal and the Writ Petition. Government pleader’s fee Rs. 250/- in each.