P.V. Durga Kumari vs Government of Andhra Pradesh and others

The petitioner filed this writ petition seeking a direction to the respondents to reinstate her as SGBT Teacher in the 3rd respondent-School by declaring the inaction on the part of the official respondents 1 and 2 on her representation dated 19-10-1994 as illegal.

The facts of the case are not in dispute. When one Swaroop Kumari, who was working as SGBT Teacher in the 3rd respondent school applied for long leave, the petitioner was appointed as a SGBT Teacher in her place on 30-11-1991, after following the due procedure prescribed in G.O. Ms. No.524, dated 20-12-1988 and the same has been approved by both the official respondents. In fact, it is her case that she was also given increments as long as she was in service. Original incumbent seemed to have reported to duty after expiry of the leave in August, 1993 and the service of the petitioner was terminated with effect from 9-8-1993. Thereafter, the original incumbent seemed to have left the country without obtaining permission and she did not rejoin the duty again. In those circumstances, the petitioner made a representation on 19-2-1994 to consider her case for appointment in the vacancy that has arisen due to the absence of the permanent incumbent. When the respondent did not pass any orders on the application, the petitioner filed the present writ petition.

In the counter filed, the respondent did not deny the fact of her selection in accordance with rules for candidates sponsored by the employment exchange and also increment given early. But, the stand of the respondent in this case is that admittedly the petitioner was appointed in leave vacancy and filed claim for appointment in a permanent or regular vacancy does not arise.

While admitting the writ petition by order dated 20-12-1994 this Court directed1 notice in WP MP 27545 of 1994. Subsequently, this Court on 18-1-1995 directed the respondents not to make any appointment for the post of SGBT Teacher on a permanent basis. Now, the Counsel for the petitioner produced a letter said to have been given by the correspondent of the school that the management will not have any objection to absorb her if the Government accords permission to that effect.

Now the question that falls for consideration of this Court would be whether the respondents are justified in not appointing the petitioner in the vacancy that has arisen due to absence of the permanent incumbent.

From the facts of the case it appears that though the petitioner was appointed in a leave vacancy she continued in that post for nearly 2 years till the permanent incumbent reported to duty in August, 1995 and within a short time, again the permanent incumbent left the country. Had she not reported to duty there is no dispute that the petitioner would have continued in service without interruption and the question of leave vacancy or permanent vacancy would not have arisen. Secondly, it is not in dispute that the appointment of the petitioner was in accordance with the rules that are made for making appointment both on permanent basis as well as on temporary basis. As the petitioner underwent process of selection and she has satisfactorily worked for considerable time, I do not think that the respondents action in trying to deny the appointment is justified. As the proverb goes that "Known devil is better than an unknown angel". Admittedly, in this case the petitioner was not only appointed after following the rules in force, but also served the institution without any adverse remarks from the management. Thirdly, now the management has come forward to re-appoint the petitioner if the Government will not come in its way. As the management is agreeable to re-appoint the petitioner who was appointed on an earlier occasion after following the procedure, the objection taken by the Government cannot be sustained in law.

For al! these reasons, I am inclined to give a direction to the respondents to consider her case for re-appointment as the SGBT Teacher in the 3rd respondent school, within four weeks from the date of receipt of a copy of this order without raising the objection i.e., the petitioner was appointed only in the leave vacancy, but not in the temporary vacancy. Further it cannot be said that the vacancy arisen is a permanent one as the regular incumbent was not removed from service by following the procedure in that regard.

Writ petition is accordingly allowed. No costs.