IN THE HIGH COURT OF ANDHRA PRADESH

****
WRIT APPEAL Nos.864 & 873 of 2021

W.A.No.864 of 2021

Between:

R.Vijaya Daniel.
…. Appellant

AND
The State of Andhra Pradesh,
Rep.by its Principal Secretary
(Higher Education Department),
Secretariat Buildings, Velagapudi,
Amaravathi & 3 others.

…. Respondents
W.A.No.873 of 2021

Between:

B.Vani Grace.
…. Appellant

AND
The State of Andhra Pradesh,
Rep.by its Principal Secretary
(Higher Education Department),
Secretariat Buildings, Velagapudi,
Amaravathi & 3 others.

…. Respondents

DATE OF JUDGMENT PRONOUNCED: 06.01.2023

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W.A.Nos.864 & 873 of 2021

SUBMITTED FOR APPROVAL:

THE HON’BLE SRI JUSTICE A.V. SESHA SAI
&
THE HON’BLE SRI JUSTICE DUPPALA VENKATA RAMANA

1. Whether Reporters of Local Newspapers

may be allowed to see the judgment? Yes / No

2. Whether the copies of judgment may be

marked to Law Reporters /Journals? Yes / No

3. Whether His Lordship wish to

see the fair copy of the Judgment? Yes / No

___________________
A.V. SESHA SAI, J

_________________________________
DUPPALA VENKATA RAMANA,J
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AVSS,J & DVR,J
W.A.Nos.864 & 873 of 2021

* THE HON’BLE SRI JUSTICE A.V. SESHA SAI

&
*THE HON’BLE SRI JUSTICE DUPPALA VENKATA RAMANA

+ WRIT APPEAL Nos.864 & 873 of 2021

% 06.01.2023
W.A.No.864 of 2021

Between:

R.Vijaya Daniel.
…. Appellant

AND
The State of Andhra Pradesh,
Rep.by its Principal Secretary
(Higher Education Department),
Secretariat Buildings, Velagapudi,
Amaravathi & 3 others.

…. Respondents

W.A.No.873 of 2021

Between:

B.Vani Grace.
…. Appellant

AND
The State of Andhra Pradesh,
Rep.by its Principal Secretary
(Higher Education Department),
Secretariat Buildings, Velagapudi,
Amaravathi & 3 others.

…. Respondents
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W.A.Nos.864 & 873 of 2021

! Counsel for Appellant : Sri G.Elisha

^ Counsel for Respondents : Sri K.V.Raghuveer

< Gist:

> Head Note:

? Cases referred:

1.(2009) 5 SCC 65

2. (2011) 3 SCC 436

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W.A.Nos.864 & 873 of 2021

THE HON’BLE SRI JUSTICE A.V. SESHA SAI

&

THE HON’BLE SRI JUSTICE DUPPALA VENKATA RAMANA

WRIT APPEAL Nos.864 & 873 OF 2021

COMMON ORDER:(per Hon’ble Sri A.V. Sesha Sai, J)

Since these two Letters Patent Appeals arise from a

common order, and as the issues are the same, this Court

deems it appropriate to hear and dispose of these cases by

way of this common order.

2. Writ Appeal No.864 of 2021 arises from

W.P.No.10253 of 2019 and W.A.No.873 of 2022 arises from

W.P.No.10252 of 2019.

3. By way of the impugned common order, dated

08.10.2021, the learned single Judge dismissed the Writ

Petitions. The said orders passed by the learned single

Judge are under challenge in these Appeals, preferred

under Clause 15 of the Letters Patent by the unsuccessful

writ petitioners.
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4. Heard Sri P.Gangaiah Naidu, learned Senior Counsel,

representing Sri G.Elisha, learned counsel for the writ

petitioners-appellants herein, and Sri K.V.Raghuveer,

learned Government Pleader for Education, for the

respondents, apart from perusing the entire material

available on record.

5. Learned Senior Counsel for the appellants contends

that the impugned common order passed by the learned

single Judge is highly erroneous, contrary to law and is a

result of non-consideration of the material available on

record. It is further contended by the learned Senior

Counsel that the reasons assigned by the learned single

Judge in the impugned order are neither sustainable nor

tenable in the eye of law; that the orders passed in similar

Writ Petitions attained finality, as such, the learned single

Judge grossly erred in permitting the respondents to

canvass the issues which were already gone into in the

earlier Writ Petitions filed by the similarly situated

individuals.
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6. On the contrary, Sri K.V.Raghuveer, learned

Government Pleader for Education, strongly supporting the

impugned orders, contends that there is no error nor there

exists any infirmity in the impugned orders passed by the

learned single Judge, as such, the said orders do not

warrant any interference of this Court under Clause 15 of

the Letters Patent; that the respondents filed counter-

affidavit, raising a number of objections which disentitle

the writ petitioners from claiming the relief sought in the

Writ Petitions. It is further contended that the contention

of the learned Senior Counsel appearing for the writ

appellants that it would not be open for the respondents to

deny the claim of the writ petitioners, having regard to the

earlier orders, is neither sustainable nor tenable. In

support of his contentions, learned Government Pleader

places reliance on the following judgments:

1. (2009) 5 SCC 65

2. (2011) 3 SCC 436

7. In the above background, now the issues that emerge

for consideration and adjudication are as infra:

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1) Whether the order passed by the learned

single Judge, having regard to the facts and
circumstances of the case, is sustainable and
tenable?
2) Whether the writ petitioners-appellants herein
are entitled for any relief from this Court?

8. Appellants herein filed the aforementioned Writ

Petitions, assailing the orders passed by the Commissioner

and Director of Collegiate Education, dated 30.01.2015

and 20.11.2015, declining to appoint the writ petitioners-

appellants herein as Lecturers in Mathematics and English

against the aided vacancies. After receipt of the notices,

respondents in the Writ Petitions contested the matters by

filing counter-affidavits. Eventually, as stated supra, the

Writ Petitions came to be dismissed by the learned single

Judge vide the orders impugned in the present Writ

Appeals.

9. The essence of the case of the appellants, as

advocated by the learned Senior Counsel, is that the

learned single Judge ought not to have permitted the

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W.A.Nos.864 & 873 of 2021

respondent authorities to re-agitate all the issues which

attained finality in a number of earlier Writ Petitions.

10. On the contrary, the sum and substance of the case

of the respondents is that the issues, which were raised

and discussed in the present Writ Petitions, were not at all

raised and considered in the earlier Writ Petitions. In order

to consider and adjudicate the issues raised in these Writ

Appeals, it would be highly essential and apposite to refer

to various earlier orders of this Court and the Hon’ble Apex

Court.

11. Similarly situated Lecturer in Botany, in the same

respondent-college, filed W.P.No.20036 of 2003 for a

direction to admit her to grant-in-aid vacancy with effect

from 01.02.2001 i.e., the date on which the aided vacancy

arose. A copy of the said order passed by the learned single

Judge of the composite High Court of A.P. is placed on

record along with the present Writ Appeals. A perusal of

the said order, in clear and unequivocal terms, reveals that

same objections were raised by the authorities in the said

Writ Petition also. However, the learned single Judge of the

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composite High Court of A.P., turned down the objections

of the authorities and allowed the Writ Petition vide order,

dated 30.10.2013. In this context, it may be appropriate to

extract certain paragraphs of the said judgment, which

read as under:

“The respondents contended that the

petitioner cannot be absorbed in the aided
vacancy, on various grounds. They raised a
contention in the counter that permission from
competent authority before making appointment
to the unaided posts was not obtained by the
4th respondent and that the very appointment
consequently is bad.
The respondent further contended that the
petitioner is a lecturer in Microbiology while the
vacancy, which arose in Botany and that the
petitioner consequently is not eligible for
absorption as lecturer in Botany in the aided
vacancy. The respondents urged that there was
no Government Nominee in the Selection
Committee and that the selection of the
petitioner into an unaided vacancy
consequently is not sustainable. Finally they
pleaded that there was a ban on the
recruitment so much so the request of the 4th
respondent to absorb the petitioner in the aided
vacancy is not permissible.
It is made clear that the petitioner is a Post
Graduate in Botany and also did Ph.D. The
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question is whether the petitioner is eligible to

teach Microbiology and whether petitioner can
be absorbed as a lecturer in Botany. Botany is
the basic course that the petitioner has
undergone. Consequently, the defence of the
respondent that the petitioner was initially
selected as Microbiology and cannot be
absorbed as a lecturer in Botany cannot be
sustained.
Admittedly, Government Nominee did not
participate in the Selection Process, which is
evident from the minutes of the Appointment
Committee dated 12.8.1995. In W.P.No.9441 of
2005 dated 26.2.2010, this question was
considered by a learned Single Judge of this
Court. Inter alia, it was pointed out that for
Minority Educational Institutions, candidates
can be selected on the basis of Selection
Committee, wherein the Government Nominee
has not participated in view of G.O.Ms.No.23,
Minorities Welfare (M&R) Department dated
10.3.1999. The 4th respondent is a Minority
Educational Institution. In view of the
observations in W.P.No.9441 of 2005, it is clear
that Minority Educational Institutions can
proceed with the selection of unaided posts
constituting a Committee without including a
Government Nominee in the Selection
Committee. Consequently the contention of the
respondents that there was no Government
nominee in the Selection Committee and that the
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very selection of the petitioner in the unaided

post is invalid is not sustainable.
It is also contended by the Government that
permission was not obtained from the
competent authority prior to filling up the
vacancies. Once again, so far as minority
institutions are concerned, the very permission
contemplated by G.O.Ms.No.12 dated 10.1.1992
is in respect of aided posts and not in respect of
unaided posts. Further, G.O.Ms.No.23 already
referred to grants exemptions in respect of
Minority Educational Institutions. Consequently,
the contention of the respondents that prior
permission of the competent authority was not
obtained before filling up the unaided posts and
that such a candidate cannot be absorbed in an
aided vacancy is not sustainable.
The further ground urged by the Government
is that there is a ban in respect of recruitment.
The leaned Senior Counsel for the petitioner
submitted that despite ban, several lecturers
were absorbed into aided vacancies after the
imposition of ban. The ban was imposed on
17.12.1999. However, the remaining lecturers
selected along with the petitioner had been
absorbed into aided vacancies. As can be seen
from the orders dated 23.12.2000 issued by the
second respondent, Smt.N.Vidyullatha Devi was
absorbed as lecturer in Zoology into the aided
vacancy. She was selected along with the
petitioner. Proceedings dated 29.12.2000
issued by the second respondent show that 4
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other persons, who were initially selected along

with the petitioner were subsequently absorbed
into aided vacancies. The respondents cannot
adopt pick and choose method accepting the
case of some of the unaided lecturers for being
absorbed into the aided vacancy and deny the
same benefit to the petitioner on the ground of
ban. Consequently, the defence that in view of
ban, the petitioner cannot be absorbed into the
aided vacancy is not sustainable.
Viewed by any angle, the refusal of the
respondents to absorb the petitioner into an
aided vacancy in Botany is not sustainable.
Consequently, the respondents 1 to 3 are
directed to accord permission to the 4th
respondent to absorb the petitioner in the aided
vacancy of the lecturer in Botany with effect
from 1.2.2001 granting such permission within
four weeks from the date of receipt of a copy of
this order.
Accordingly, the Writ Petition is allowed. No
costs. Miscellaneous petitions, pending if any in
this Writ Petition shall stand closed”.

12. It is also not in controversy that, by way of

G.O.Ms.No.3, Higher Education (CE) Department, dated

10.01.2018, the State Government implemented the above

mentioned order.
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13. Earlier, similarly situated Lecturers filed

W.P.No.9441 of 2005 and in the said Writ Petition also

same objections were taken by the respondent authorities,

but the learned single Judge of the composite High Court

of A.P. allowed the Writ Petition vide order, dated

26.02.2010, turning down the said objections of the

authorities. It is also significant to note that, assailing the

aforesaid order, the respondent authorities carried the

matter by way of Intra-Court Appeal vide W.A.No.851 of

2010 and the Division Bench of the composite High Court

of A.P. vide order, dated 15.02.2012, dismissed the said

Writ Appeal.

14. As against the said order passed by the Division

Bench in W.A.No.851 of 2010, Special Leave to Appeal vide

C.C.No.19308 of 2012 was filed by the Department and the

Hon’ble Apex Court vide order, dated 27.09.2013,

dismissed the said Special Leave to Appeal. Operative

portion of the said order reads as follows:

“We have heard learned counsel for the

parties and carefully perused the record.
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We are in complete agreement with the

learned single Judge and the Division
Bench of the High Court that the reasons
put forward by the petitioners for refusing
to consider the case of respondent No.1
for grant of approval were legally
unsustainable.
We also do not find any error in the
direction given by the learned single Judge
to the petitioners to reconsider the case of
respondent No.1 for regularisation of her
service and for absorption against the
aided post of Junior Lecturer (Maths) in the
service of respondent No.2 with effect from
09.12.1994 and to give her all
consequential benefits. The learned single
Judge gave these directions because in the
case of Mohd.Ayazuddin, the department
had accorded approval for his absorption
despite the fact that he was appointed in
the same manner in which respondent
No.1 had been appointed”.

15. Subsequently, the State Government vide

G.O.Ms.No.16, Higher Education (I.E.II) Department, dated

12.03.2012, implemented the order passed by the learned

single Judge of the composite High Court of A.P., in

W.P.No.9441 of 2005, dated 26.02.2010, as confirmed by

the Hon’ble Apex Court.

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16. It is also significant to note that vide common order,

dated 20.12.2018, W.P.No.7789 of 2012 & batch was

allowed, while referring to similar orders of absorption of

identically placed individuals. Paragraph Nos.20, 21 and

22 of the said common order read as follows:

“20. As rightly contended by the counsel for

petitioners, when the State itself had absorbed
similarly situated persons like the Writ
Petitioners into grant in aid posts on its own
and also pursuant to orders passed by this
Court, it cannot be contended that petitioners
have to be treated on a different footing and
they should be denied consideration for
absorption in the grant in aid vacancies in the
respective subjects existing in the private
managements where the respective petitioners
are working.
21. Therefore, all these Writ Petitions are
allowed. The orders rejecting absorption in
aided posts passed by the Commissioner and
Directorate of Collegiate Education, Andhra
Pradesh in the case of the petitioners are set
aside; and the State of Andhra Pradesh and the
Commissioner of Collegiate Education are
directed to absorb the petitioners in the aided
posts of Lecturers in the respective private
Managements with all consequential benefits.
22. Accordingly, the Writ Petitions are allowed
as above. No order as to costs”
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17. As against the above orders, W.A.No.263 of 2019 &

batch came to be preferred and a Division Bench vide

order, dated 31.01.2020, dismissed the said Writ Appeals.

The said orders passed by the Division Bench were carried

to the Hon’ble Apex Court by way of

S.L.P.(C)No.13575/2020 and the Hon’ble Apex Court vide

order, dated 25.11.2020, dismissed the said petition. It is

also not in controversy that the Review Petition filed vide

Diary No.31/2021 in the aforementioned

S.L.P(C).No.13775/2020 also came to be dismissed by the

Hon’ble Apex Court vide order, dated 03.02.2021. A copy

of the said Review Petition filed before the Hon’ble Apex

Court is placed on record along with the present Writ

Appeals as a material paper. In this context, it would be

highly essential and appropriate to extract Grounds R, S,

T & W of the Review Petition, which read as under:

“R. BECAUSE the Hon’ble High Court

erred in nothing that there is not law
existing conferring such benefits on the
employees of Private Educational
Institutions. In fact, as early as on
03.11.1999, the Government issued a
G.O.283 [Page 121 of SLP Paper-book],
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whereby all previous G.O.s, which

provided a right of regularization /
absorption to such employees were
withdrawn once and for all.
Consequently, no law of regulation exists
that confers such a right upon such
Lecturers.
S. BECAUSE the Hon’ble High Court
erred in not nothing that, Andhra
Pradesh Regulation of Appointments
to Public Services and Rationalisation
Of Staff Pattern And Pay Structure
Act, 1994 categorically forbids such
regularization. The said provision reads as
under:
“7. No person who is daily wage employee
and no person who is appointed on a
temporary basis under section 3 and is
continuing as such at the commencement
of this Act shall have or shall be deemed
ever to have a right to claim for
regularization of services on any
ground whatsoever and the services of
such person shall be liable to be
terminated at any time without any notice
and without assigning any reasons.”
The aforesaid Act is applicable to all
services defined as ‘Public Services’ under
Section 2 (vi) (e) of the Act which reads as
under:
“(e) any other body established by the
State Government or by a Society
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registered under any law relating to the

registration or societies for the time being
in force, and receiving funds from the State
Government either fully or partly for its
maintenance or any educational institution
whether registered or not but receiving
aid from the Government.”
T. It is thus clear that there is a categorical
bar to regularization. This aspect has not
been considered by the Hon’ble Court.
W. The Hon’ble High Court erred in not
appreciating that none of the previous
judgments relied upon by the Hon’ble High
Court have referred to (much less
considered) the effect of G.O.Ms.No.283
dated 03.11.1999 [Page 121 of SLP
Paper-book] whereby all previous
Government’s Orders prescribing for
regularization of Lecturers to Aided
Posts were rescinded. As on date,
there is no law, whatsoever, that
confers any right upon the Lecturers,
to claim regularization/absorption”.

18. The fact remains that the respondents categorically

took all the objections in the earlier Writ Petitions,

however, as mentioned supra, the Writ Petitions were

allowed. In the present cases also the same grounds, which

were taken in the Review Application filed before the

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Hon’ble Apex Court, as mentioned supra, are sought to be

pressed into service by the respondents. It is not at all the

case of the respondents that, in respect of the individuals

whose services were already regularised by the

Government, there were no such objections.

19. Request for repeated adjudication of the issues,

pertaining to similarly situated persons on the ground that

there are new grounds for denying the relief is not

permissible. In the considered opinion of this Court, the

same would create two different sub-Clauses in one Class,

which ultimately offends Article 14 of the Constitution of

India. As mentioned supra, the objections now sought to be

pressed into service were also available in the earlier cases

and also in the cases where the Government on its own

extended the benefit to the similarly situated persons. No

plausible explanation is forthcoming as to why the present

objections were overlooked and did not come in the way of

the respondents, while considering the similarly situated

persons. In the considered view of this Court, if the

contentions of the respondents are permitted and accepted,

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there cannot be finality for any issue and it may continue

as a never ending issue which would eventually frustrate

and defeat the very object of the adjudication and the

concept of finality. The contention of the learned

Government Pleader that, in the event of considering the

request of the writ petitioners-appellants herein positively,

the same would amount to perpetuating illegality, in the

considered opinion of this Court, cannot stand for judicial

scrutiny, having regard to the earlier orders of this Court

and the orders of the Hon’ble Apex Court, including the

order in the Review Application (referred to supra), filed by

the authorities, raising the same grounds.

20. Having regard to the factual situation and the orders

passed by the Hon’ble Apex Court in the Review

Application, referred to supra, the judgements cited by the

learned Government Pleader would not render any

assistance to the case of the respondent authorities.

21. For the aforesaid reasons, Writ Appeals are allowed,

setting aside the order, dated 08.10.2021, passed by the

learned single Judge in W.P.Nos.10252 and 10253 of 2019

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and, consequently, Writ Petitions are allowed as prayed for.

There shall be no order as to costs.

Miscellaneous petitions, if any, pending in these

cases, shall stand closed.

___________________
A.V. SESHA SAI, J

______________________________
DUPPALA VENKATA RAMANA
06th January, 2023.
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