Dr. Prgada Rajaganathi and others Vs P. Goverdhan Reddy and others

@JUDGMENTTAG-ORDER

S.B. Sinha, C.J.@mdashThis writ petition is directed against the judgment and order dated 2-12-1999 passed by the A.P. State Administrative Tribunal in OA No.7129 of 1999 whereby and whereunder, an application filed by the respondents ], 2 and 3 herein was allowed with the following direction:

This OA is disposed of with a direction to the respondents that any selection and appointment by transfer of College Lecturers to the post of Principal in Degree Colleges should be strictly in accordance with the rules issued in G.O. Ms. No.158, dated 10-6-1987 as amended in G.O. Ms. No.131, dated 29-5-1990 and as clarified in Government Memo. No.276 HE.l/90-15, dated 29-3-1995 and if the applicants come within the zone of consideration for appointment by transfer to the post of Principal, Degree Colleges, their cases should also be considered along with others if they are otherwise eligible and qualified in terms of the rules issued in G.O. Ms. No.158, dated 10-6-1987 read with G.O. Ms. No.131, dated 29-5-1990 and Memo dated 29-3-1995.

2. The said order was passed on the ground that the cases are squarely covered by the judgment of the Tribunal dated 8-11-1999 in OA No.5895 of 1998 and Batch. Basically, therefore, the order in OA No.5895 of 1998 and Batch is in question in these applications.

3. On or about 9-2-1962, a rule was issued by G.O. Ms. No.259 known as A.P. Education Service Rules in terms whereof the post of Principal was included in category I of Clause IV and the Lecturers were included in category II of Clause IV. The short question which arises for consideration in these petitions in whether degree in M.Phil or Ph.D is required for promotion from the post of Lecturer to the post of Principal.

4. It is not in dispute that the matter relating to appointment of the teaching staff of colleges was governed by A.P. College Service Commission Act, 1985 being Act No. 13 of 1985 (hereinafter for the sake of brevity referred to as ''the said Act''). The Statement of Objects and Reasons leading to enactment of the said Act is as follows:

At present the requirement of teaching staff to private Degree and Junior Colleges is not regulated by any law, with the result that there is no specialised body to properly assess the talent before recruitment. Consequently, the teaching staff recruited to private Degree and Junior Colleges are not always talented persons and this factor has been contributing to the decline in the quality of teaching in these colleges. The three man Committee headed by Sri P. Jaganmohan Reddy, formerly Vice-Chancellor of Osmania University constituted in the context of the implementation of the University Grants Commission Scales, has also recommended the setting up of Central Recruitment agency for all the teaching posts in the affiliated colleges. With a view to providing for rational selection process and to attract talented persons and also to implement the recommendations of the said Committee, it is decided to establish a College Service Commission by law.

5. Section 19 of the said Act provides for rule making power. Pursuant to or in furtherance of the said power, G.O. Ms. No. 158, dated 10-6-1987 was issued making Rules of A.P. College Service Commission (Selection of Persons for Appointment to the post of Teachers) Rules, 1987 (hereinafter for brevity referred to as ''the said Rules''). By reason of the said rules the Commission could select candidates for appointment to the following posts of teachers in the Colleges:

(a) Professors, Readers and Lecturers for the post-graduate and for under graduate courses offered in Degree Colleges;

(b) Principals of Degree Colleges, Oriental Colleges, Colleges of Education and Law Colleges;

(c) Lecturers in Degree Colleges, Oriental Colleges, Colleges of Education and Law Colleges;

(d) Principals of Junior Colleges;

(e) Junior Lecturers of Degree and Junior Colleges;

(f) Physical Directors, Directresses in Degree Colleges and Colleges of Education; and

(g) Physical Directors/Directresses in Junior Colleges.

Rule 5 provides the qualifications for holding the said posts:

The qualifications, experience and method of recruitment for each of the categories of posts mentioned in Rule 4 above shall be as given in the table appended thereto:

Provided that the suggestions given by the A.P. Commissionerate of Higher Education in regard to service conditions of the said posts subject to the guidelines issued by the Government from time to time shall also be taken into consideration while making the selections.

6. In terms of the said rules for holding the post of Lecturer in Degree Colleges, the candidates are required to possess M.Phil or Ph.D. The Government issued GO131 in terms whereof an explanation was added, which is in the following term:

Notification:

In exercise of the powers conferred by sub-section (1) of Section 8 read with sub-section (1) of Section 19 of the Andhra Pradesh College Service Commission Act, 1985 (Act No. 13 of 1985) the Governor of Andhra Pradesh hereby makes the following amendment to the rules, relating to the selections of persons of Andhra Pradesh College Service Commission for appointment to the posts of teachers

Amendment

In the said rules in Rule 5 in the table against serial number 4 in column (3) the existing explanation shall be renumbered as Explanation II and before the explanation as so renumbered, the following explanation shall be inserted namely.

"Explanation 1 :--For the purpose of recruitment by transfer/ promotion, to the posts of Principals from the category of the Lecturers of the Degree Colleges, such of those Lecturers who were appointed prior to the 1st April, 1976, shall be deemed to have been exempted from the possession of the qualifications prescribed in items (i) and (ii). Such Lecturers shall, however be required to possess a First or Second Class Degree of M.A./M.Sc./M.Com/B.A. (Hons)/B.Sc. (Hons) of any University in the State".

7. By reason of the Memo dated 29-3-1995, it was directed by the State:

In the circumstances stated by the Commissioner of Collegiate Education, Hyderabad in the letters 2nd and 4th cited, Government after careful consideration hereby direct that pending formal amendment to the rules, the posts of Principals of Government Degree Colleges may be filled up on ad hoc basis by promoting Lecturers who were appointed prior to 1-4-1976 as Assistant Lecturers but were re-designated as Lecturers with effect from 1-4-1976 in terms of G.O. Ms. No.1072, Edn., dated 26-11-1976.

The Commissioner of Collegiate Education, Hyderabad is therefore requested to send appropriate proposals to Government immediately.

8. The validity of the aforementioned memo dated 29-3-1995 came up for consideration before the Andhra Pradesh State Administrative Tribunal in OA No.2849 of 1995 and by a judgment dated 1-4-1996 validity thereof was upheld. As the said decision was not implemented, another OA No.5895 of 1998 was filed for declaration that the said Memo No.276/HE.I/ 90-15 as valid and further directing the respondents to follow the G.O. Ms. No.158, dated 10-6-1987 for appointment to the post of Principal in Degree Colleges. As noticed hereinbefore, the impugned judgment of the Tribunal in OA No.7129 of 1999 has been passed following the afore mentioned judgment.

9. The following facts are not disputed. The posts of Principals and Lecturers were governed by the rules issued in G.O. Ms. No.259, dated 9-2-1962 in terms whereof only a post graduate qualification with first or higher second class was necessary. A three man Committee was appointed to go into the matter of revision of pay scales. According to the report of the said three man Committee, G.O. Ms. No.1072, dated 26-11-1976 was issued, and in terms whereof one category of posts viz., ''Lecturer'' instead of various categories like Readers. Heads of Departments, Senior Lecturers, Lecturers, Assistant Lecturers and Junior Lecturers was constituted. All the posts were re-designated as Lecturers with effect from 1-4-1976 according to which the qualification of M.Phil is made for the first time as an essential qualification for the post of Lecturer, which is to be filled up in future. In fact, even for the existing Lecturers and re-designated Lecturers the Government proposed M.Phil Degree to be acquired. By reason of G.O. Ms. No.719, dated 3-7-1978 the Lecturers or re-designated Lecturers were exempted from possessing M.Phil degree, as a result whereof, there exists only one category of Lecturers with effect from 1-4-1976. By reason of G.O. Ms. No.1072, dated 26-11-1976, M.Phil degree was in essential qualification for direct recruitment to the post of Lecturers but at the same time, the rules relating to the post of Principal were not amended.

10. A.P. College Service Commission (Selection of persons for appointment to the post of Teachers) Rules, 1987 were issued vide G.O. Ms. No.1 58, Education Department, and according to Rule 5 whereof, one must possess consistently good academic record with 1st or higher second class at the Master''s degree in the relevant subject or an equivalent degree of a foreign University and M.Phil degree or a recognised degree beyond Master''s level or published work indicating the capacity of a candidate for independent research work for appointment to the post of Lecturers (in degree colleges) and also for appointment to the post of Principals of Degree Colleges. Yet again, by reason of G.O. Ms. No.131, dated 29-5-1990, the Lecturers who were appointed prior to 1-4-1976 are exempted from possessing the qualifications prescribed in G.O. Ms. No. 158. There is no distinction between the Lecturers appointed prior to 1-4-1976 and the Lecturers re-designated with effect from 1-4-1976. The Government Memo No.276, dated 29-3-1995 was issued considering that the Lecturers re-designated from 1-4-1976 were also entitled to be considered for promotion to the post of Principal. The same was unsuccessfully challenged in OA No.2849 of 1995 by the Lecturers possessing the M.Phil/Ph.D.

11. The learned Counsel for the unofficial respondents contend that prescribing M.Phil /Ph.D degree for promotion to the post of Principal is arbitrary and has no nexus for discharging the duties of Principal. On promotion as Principal, he will discharge duties which are administrative in nature, in addition to his duty of teaching.

12. Some of the Lecturers with M.Phil/ Ph.D filed OA. No.5895 of 1998 and 1094 of 1999 for promotion to the post of Principal in terms of rules issued in G.O. Ms. No.158, dated 10-6-1987. The learned Tribunal upheld the Govt. Memo dated 29-3-1995 as was done earlier in OA No.2849 of 1995. The Tribunal considering its earlier judgment in OA No.5895 of 1998 disposed of the present OA by a judgment dated 2-12-1999 which is impugned in the writ petition.

13. The learned Tribunal by its judgment dated 8-1-1999 in OA No.5895 of 1998 directed:

In the result, the Oas, are disposed of with a direction to the respondents that any selection and appointment by transfer of College Lecturers to the post of Principal in Degree Colleges should be strictly in accordance with the rules issued in G.O. Ms. No.158, dated 10-6-1987, and if the applicants come within the zone of consideration for appointment by transfer to the post of Principal, Degree Colleges, their cases should also be considered along with others if they are otherwise eligible and qualified in terms of the rules issued in G.O. Ms. No.158 dated 10-6-1987.

14. It is not in dispute that the petitioners herein who were originally appointed as Assistant Lecturers and in terms of the aforementioned Memo dated 29-3-1995, they were deemed to be holding the post of Lecturers. It is true that by reason of explanation appended to Rule 5 of the rules, those who are appointed prior to 1-4-1976 would be deemed to have been exempted from possession of the qualifications prescribed in items (i) and (ii). But the question which arises for consideration is as to whether pending formal amendment, the posts of Principal could be directed to be filled up by promoting Lecturers who were appointed prior to 1-4-1976, but were re-designated as Lecturers from 1-4-1976 in terms of G.O. Ms. No. 1072, Edn., dated 26-11-1976.

15. The learned Counsel for the petitioners would contend that prescribing M.Phil or Ph.D for the post of Principal cannot be said to be arbitrary. Mr. M, Panduranga Rao, learned Counsel appearing for the petitioners in WPNo.27218 of 1999 submitted that the Memo No.276, dated 29-3-1995 was also not followed.

16. Mr. Surendra Rao, learned Counsel for the respondent, on the other hand, would submit that the impugned memo dated 29-3-1995 is contrary to the statutory rules issued in this regard.

17. The learned Government Pleader appearing for the official respondents however submits that the State has abolished the College Service Commission. The College Service Commission which was constituted under the State Act is a statutory authority. The Commission having been delegated with the power of selection of Lecturers and other teaching staff must take steps which are essential thereof. By reason of its rule making power, undoubtedly, the prescription of qualifications for holding the selection posts cannot be said to be arbitrary.

18. In The State of Jammu and Kashmir Vs. Shri Triloki Nath Khosa and Others, , it has been held:

A rule which classifies such employees for promotional purposes, undoubtedly operates on those who entered service before the framing of the rule but it operates in future in the sense that it governs the future right of promotion of those who are already in service. The impugned rules do not recall a promotion already made or reduce a pay scale already granted. They provide for a classification prescribing a qualitative standard, the measure of that standard being educational attainment. Whether a classification founded on such a consideration suffers from a discriminatory vice is another matter which we will presently consider but surely, the rule cannot first be assumed to be retrospective and then be struck down for the reason that it violates the guarantee of equal opportunity by extending its arms over the past. If rules governing conditions of service cannot ever operate to the prejudice of those who are already in service, the age of superannuation should have remained immutable and schemes of compulsory retirement in public interest ought to have founded on the rock of retroactivity.

19. The posts of Assistant Lecturers and Lecturers had all alone been treated differently. Those who have better or higher qualifications were appointed in the post of Lecturer and some were appointed only in the post of Assistant Lecturer or Deputy Lecturer. The State undoubtedly could pass the order of merger. It could amend the rule with retrospective effect, as is well-known, when a legal fiction therefore is created. However, the retrospective effect cannot be permitted to extend beyond the scope and object.

20. In Kuldeep Singh Vs. Ganpat Lal and another, , it was held:

In the present case, the appellant is seeking to avail of the benefit of the legal fiction u/s 19-A (4) of the Act. It is settled law that a legal fiction is to be limited to the purpose for which it is created and should not be extended beyond that legitimate filed (See The Bengal Immunity Company Limited Vs. The State of Bihar and Others, .

21. It is also trite that when a qualification is sought to be exempted, the same should be strictly construed.

22. By reason of the explanation, the exemption has been granted only to those Lecturers who were appointed prior to 1-4-1976. Such exemption, ex facie, would not apply to such Assistant Lecturers who were re-designated as Lecturers with effect from 1-4-1976. It appears from the Memo dated 29-3-1995 that the same was issued pending formal amendment to the rules. It has not been disputed before us that the rules have not yet been amended.

23. In Vimal Kumari v. Slate of Haryana 1998 SCC 1018, the Apex Court held:

"The Draft Rules were prepared in 1983 and since then they have not been enforced. It is, no doubt, open to the Government to regulate the service conditions of the employees for whom the rules are made by those rules even in their ''draft stage'' provided there is clear intention on the part of the Government to enforce those rules in the near future. Recourse to such Draft Rules is permissible only for the interregnum to meet any emergent situation. But if the intention was not to enforce or notify the Rules at all, as is evident in the instant case, recourse to "Draft Rules" cannot be taken. Such Draft Rules cannot be treated to be rules made under Article 309 of the Constitution and cannot legally exclude the operation of any existing executive or administrative instruction on the subjects covered by the Draft Rules nor can such Draft Rules exclude the jurisdiction of the Government, or for that matter, any other authority, including the appointing authority, from issuing the executive instructions for regulating the conditions of service of the employees working under them.

24. The said decision has been followed by a Division Bench of Calcutta High Court in V. Ramarao v. Municipal Council ILR 2000 (1) A&N 1. Therein, the Bench observed:

It appears that the learned trial Judge in support of his above mentioned finding had relied upon a decision of the Apex Court in Vimal Kumari Vs. The State of Haryana and Others, . However, a bare perusal of the said decision clearly shows that apart from the fact that therein the effect of seniority rules was the subject-matter before the Apex Court, but it itself held. The Draft Rules were prepared in 1983 and since then they have not been enforced. It is, no doubt, open to the Government to regulate the service conditions of the employees from whom the rules are made by those rules even in their ''draft stage'' provided there is clear intention on the part of the Government to enforce those rules in the near future. Recourse to such draft rules is permissible only for the interregnum to meet any emergent situation. But if the intention was not to enforce or notify the rules at all as is evident in the instant case, recourse to ''draft rules'' cannot be taken. Such draft rules cannot be treated to be rules made under Article 309 of the Constitution of India legally exclude the operation of any existing executive or administrative instruction on the subject covered by the Draft Rules nor can such draft rules exclude the jurisdiction of the Government or for that matter, any other authority, including the appointing authority, from issuing the executive instructions for regulating the conditions of service of the employees working under them.

25. In any event, by reason of the Explanation appended to Rule 5 in terms of G.O. Ms. No.131, dated 29-1-1990, the exemption had been granted only to those who are appointed prior to 1-4-1976. By reason of the circular dated 29-3-1995, the said rules could not have been amended. A rule made under proviso to Article 309 cannot be amended by reason of an executive instruction. In this connection, we may refer to the decisions in Wing Commander J. Kumar Vs. Union of India (UOI) and Others, , O.P. Singla and Another Vs. Union of India (UOI) and Others, , Dr. (Mrs.) Sandhya Jain Vs. Dr. Subhash Garg and Another, , Shish Ram and Others Vs. State of H.P. and Others, , J.C. Bhatia Vs. State of Rajasthan and Others, , Bengal Iron Corporation and another Vs. Commercial Tax Officer and others, .

26. Further more, it is one thing to say that exemption has been granted for the purpose of re-designation of Assistant Lecturers. But it would be another thing to say that they are entitled to the post of Principal. The post of Principal is a selection post and thus, the statutory rules as regards the qualifications can be amended only by a statutory rule. It may be true that the Tribunal at one point of time by reason ofthe judgment dated 1-4-1996 in OA No.2849 of 1995 held that Memo No.276 dated 29-3-1995 is valid. As indicated hereinbefore the petitioners themselves in OA No.5895 of 1995 sought for a declaration about the validity thereof. In any event, this Court is not bound by a decision of the Tribunal.

27. For the reasons aforementioned, we find that there is no merit in the writ petitions and they are accordingly dismissed. Even otherwise, as far as second writ petition i.e., WP-No.27218 of 1999 is concerned, the petitioners have approached this Court directly by passing the forum of A.P. State Administrative Tribunal. Hence, it is dismissed as not maintainable.