Vimal S. Tompe (Smt.) vs Regional Joint Director of School Education, Govt. of A.P. and Others

In the writ petition originally presented before this Court the petitioner assailed the order of the District Educational Officer, Hyderabad, the second respondent herein, dated 29-3-1991 not approving the appointment of the petitioner as School Assistant, but appointing her as S.G.B. Teacher and further seeking direction to the respondents to continue the petitioner as B.Ed. School Assistant and pay to her the salaries attached to the said post by direct payment system regularly.

Although numerous facts arc stated in the pleadings and certain documents are placed before the Court for perusal and consideration, the question which falls for consideration is in a narrow compass. .The only question which falls for consideration is whether the petitioner or the 4th respondent is entitled to be appointed against one sanctioned post of B.Ed. School Assistant as sanctioned vide G.O.Ms.No.l78-Education (SSE. l) Department, dated 23-7-1990. Before dealing with tills question, few relevant facts germane to the decision be noted as under:

The petitioner was initially appointed as B.Ed. School Assistant in the third respondent School in an unaided post on 9-7-1980 by proceedings of the second respondent dated 24-3-1987. Her appointment was approved with effect from 1-9-1985 and she was absorbed into a grant-in-aid post of School Assistant. She was ever since continuing in the said post of School Assistant. According to the fourth respondent, he was also appointed as School Assistant in the year 1989. The fourth respondent was appointed as School Assistant against the sanctioned post by the impugned proceedings dated 29-3-1991 passed by the second respondent after reverting the petitioner to the post of S.G.B. Teacher. According to the petitioner, the said action of the second respondent was not preceded by any formal order or notice to the petitioner.

This writ petition on an earlier occasion was heard by my learned brother C. V.N. Sastri, J. and was allowed by the order of the Court dated 17-4-1997. Subsequently, the said order was recalled on the ground that the learned Counsel appearing for the fourth respondent was not heard in the matter before the order was pronounced.

The facts stated supra make one thing certain. When the Government, vide G.O.Ms.No.178, dated 23-7-1990, sanctioned one post of B.Ed. School Assistant in the third respondent High School, the petitioner and the 4th respondent were qualified to be considered for the said sanctioned aided post. The petitioner is a Science Teacher whereas the 4th respondent is a Mathematics Teacher. As already pointed out supra, the question to be considered is between the two who should be preferred for the appointment to the sanctioned post of B.Ed. School Assistant.

When this matter was heard on the last occasion, Sri Sarma, learned Counsel for the 4th respondent contended that there were certain guidelines and administrative instructions issued by the Educational authorities of the State governing the mode of filling up of the aided post, according to which the petitioner has had the preference to be considered, he being a Mathematics Teacher. In order to have a look at the said administrative instructions, the case was adjourned. Today, at the time of hearing, the learned Government Pleader for School Education produced a copy of administrative instructions issued by the Director of School Education governing the mode of appointment to the sanctioned post of School Assistant when Upper-Primary Schools are proposed to be upgraded into High Schools. In the instant case, we are not concerned about filling up of a post sanctioned by the Government at a time when the Upper-Primary School was permitted to be upgraded into a High School. Even according to the counter of the third respondent - management of the school, the third respondent was a High School in the year 1980 itself. G.O.Ms. No. 178 is dated 23-7-1990. Therefore, the guidelines placed before the Court by the learned Government Pleader for School Education are totally irrelevant for the purpose of the present case. Neither the learned Counsel appearing for the 4th respondent nor the learned Government Pleader for School Education are in a position to place any materials before the Court to show that when the management of the third respondent school proceeded to fill up one sanctioned post of B.Ed. School Assistant, it should prefer or should have preferred the 4th respondent, he being a Mathematics Teacher. In the absence of such binding regulations or administrative instructions as a condition precedent to extending grant-in-aid to the School, the petitioner should have been preferred and appointed against the sanctioned post, she being quite senior to the 4th respondent. Admittedly, the petitioner was appointed in the year 1980 whereas the 4th respondent was appointed only in the year 1989. It is nobody''s case that the sanctioned post of B.Ed. Assistant cannot be filled up by a Science Teacher. I can take judicial notice of the fact that the third respondent being a High School, there is a compulsory provision to teach Science also to the pupils studying in the School. Therefore, there is necessity to have a Science Teacher. The petitioner being a Science Teacher and she having put in nearly nine years more service than the 4th respondent, equity, reasonableness, fair-play in action on the part of the State authorities as well as the third respondent -aided educational institution do command that they should practice the seniority rule in making appointment against the sanctioned post. It is now well settled that even aided educational institutions which receive grants from the State authorities are required to practice reasonableness, fair-play in action flowing from Article 14 of the Constitution of India. I find that the action of the third respondent - management and the action, of the State authorities in appointing and approving the appointment of the 4th respondent against the sanctioned post and denying the right to the petitioner tantamounts to the respondents practising an invidious discrimination violating Articles 14 and 16 of the Constitution.

In the result, the writ petition is allowed and the impugned orders are quashed. A Writ of Mandamus shall issue to the respondents to appoint the petitioner to the post of B.Ed. School Assistant sanctioned vide G.O.Ms. No. 178-Education (SSE. l) Department, dated 23-7-1990 with effect from the date on which the 4th respondent was appointed to the same post and extend all the benefits, pecuniary or otherwise, flowing from such appointment. No costs.