G SREENIVASAMURTHI Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) The petitioner was appointed as Secretarial Assistant in the Municipal High School, Kurnool on 18th June, 1952, after he had passed his B.Com. Examination and Technical Teacher's Diploma Examination. He passed his B.Ed. Examination in 1956 and the Accounts Test prescribed for Headmasters in August, 1963. The petitioner's contention is that ever since he passed his B.Ed., Examination he was entrusted with teaching of English, Social Studies apart from the Secretarial Subjects such as Book-keeping, Commercial Practice, Drafting etc. The 3rd respondent i e., the Executive Committee of the Kurnool Municipality by its Resolution No. 560 dated 16th August, 1969, had resolved to convert his services as B.Ed., Assistant with retrospective effect from 1956 as he was handling non-secretarial classes also from 1956. On 16th September, 1968, the Executive Committee of the Municipality passed Resolution No. 348 dated 16th September, 1968, appointing the petitioner as Headmaster of the High School on temporary basis. The petitioner understands that the 4th respondent preferred an appeal against that order to the 1st, and and 3rd respondents separately without making him a party to the said appeal. The 3rd respondent i.e., the Executive Committee by its order dated 29th November, 1968, rejected the appeal. However, the and respondent i.e., the Director of Public Instruction by his letter No. 11849/68 dated nth February, 1969, addressed the 3rd respondent that the appointment of the petitioner was not in order since the Secretarial Assistants are not eligible for appointment to the post of the Headmaster and requested the 3rd respondent to appoint a seniormost B.Ed., Assistant as Headmaster reverting the petitioner to the post of Secretarial Assistant. The said order was placed before the Executive Committee. The Executive Committee by its Resolution No. 929 dated 11th March, 1969, resolved to continue the petitioner as Headmaster till the panel is prepared under the Rules framed under section 74 of the Andhra Pradesh Municipalities Act. The and respondent was accordingly informed. The and respondent by his letter Roc. 11849/68/G-4 dated 2nd April, 1969, stated that the action of the Municipality in continuing the petitioner as Headmaster cannot be approved since it is not permissible under the rules. Tt is also stated therein that it is not permissible to permit the conversion of the services of Secretarial Assistant as B.Ed., Assistant with retrospective effect. The 3rd respondent by Re. 14573/68/G-1 dated 6th September,1969, stated that the petitioner was eligible to continue as Headmaster and that the appointment is in order. The Committee also requested the 1st respondent to approve and ratify the action taken. The 1st respondent passed orders on 6th October, 1969, on the appeal filed by the 4th respondent holding that the appointment of the petitioner was not in order and directing the 3rd respondent to implement the orders of the and respondent immediately. In pursuance of the said orders, the Chairman of the Municipal Council in his Proceedings Roc. 14573/68-C-1 dated 15th November, 1969, reverted the petitioner and posted him as L.T. Assistant and the 4th respondent was promoted and appointed as Headmaster on temporary basis. The contention of the petitioner is that the order of the Government is illegal, opposed to all principles of natural justice, ultra vires the statutory rules, and violative of Article 14 of the Constitution.

(2.) The contentions raised by the petitioner are that the Government had no jurisdiction to interfere in appeal which has been preferred by the 4th respondent as the appeal preferred by the 4th respondent to the Municipal Council has been finally determined by it by rejecting the same and that under the provisions of section 345 (2) of the Act no further appeal lay to the Government. It is also contended that in the circumstances of the case, the Government was not competent to interfere and pass any orders directing the reversion of the petitioner and appointment of the 4th respondent as Headmaster. The second contention is that assuming that the Government was competent to interfere and pass the impugned orders, the said order is made without following the procedure prescribed for making such an order under the Act and it also contravenes the principles of natural justice. The third contention is that the rule providing for appointments to the posts of Headmasters contravenes the provisions of Article 14 of the Constitution inasmuch as invidious discrimination has been made against Secretarial Assistants who are also in possession of teaching degrees. It is also argued that according to G.O.Ms. No. 831 dated 3rd November, 1969, the Andhra Pradesh Educational Rules apply to all the appointments made in the Municipal High Schools and there is nothing in these rules which is inconsistent with the Andhra Pradesh Educational Subordinate Services rules in this respect and the petitioner's appointment as Headmaster is, therefore, valid. Lastly it is argued that even on the merits, the petitioner has a better right to be appointed as Headmaster than the 4th respondent.

(3.) We will take up for consideration in the first place the question whether the rules prescribing qualifications for appointment of Headmasters contravene the provisions of Article 14 of the Constitution. Before referring to the rules, it is necessary to refer to the provisions of section 74 of the Andhra Pradesh Municipalities Act which provides that subject to any rules the Government may make in this behalf, appointment to the posts of officers and employees, the pay or the maximum pay of which exceeds eighty rupees per mensem shall be made by the executive committee from a panel prepared by a committee consisting of the Director of Municipal Administration, the concerned Head of the Department and the president of the Chamber of Municipal Chairman etc. Admittedly the post of Headmaster is a post which carries a pay exceeding Rs. 80 per month. According to section 74, a permanent appointment to the post of Headmaster has to be made subject to the rules and from a panel prepared by a committee constituted as per the provisions of section 74 of the Act. The Government, prior to the enactment of the Andhra Pradesh Municipalities Act, 1965, had made rules under the provisions of the Andhra Pradesh (Andhra Area) District Municipalities Act, 1920, for preparation of a panel for appointment to the posts of Headmasters. Those rules continue in view of the provisions of the Andhra Pradesh General Clauses Act. The material rule in the Rules so framed is rule 2 the relevant portion of which reads as follows:- "The following procedure shall be adopted in drawing up the panel: (1) The Appointment Committee shall send to the Divisional Inspector of Schools or the Inspectress of Girls Schools concerned, a list of all the L.T..B.T. or B.Ed., Assistants in the service of the Municipal Council who have passed the Account Test required to be passed by the headmasters headmistresses of secondary schools under Municipal Council and who have put in or who will have put in a service of not less than ten years on the 1st day of May of the year to which the panel relates and whose names are not already in the panel.... Explanation.-(1) For the purpose of computing the ten years' qualifying service for appointment as headmasters The previous service, if any, of a B.Ed., B.T. or L.T. Assistant under any other local authority, shall be taken into account. Explanation.-(2) The entire service put in by a Grade I Language Assistant or pandit as such shall be included in computing ten years service required for inclusion in the panel of Headmasters and Headmistresses, subject to the condition that he or she is a graduate with B.Ed, qualification at the time of consideration of the panel". It is not necessary to refer to the other provisions of the said rule. The learned Counsel for the petitioner contends that by virtue of section 74 of the Act, a headmaster can be appointed only from a panel prepared as provided under the rules and the rules for the preparation of a panel for appointment to the posts of Headmasters restrict it to L.T., B.T. or B.Ed. Assistants. The rule does not include the category of Secretarial Assistants who, according to him, also discharge similar functions as L.T., B.T. or B.Ed. Assistants. He further pointed out that by virtue of Explanation (2) to the said rule even a Language Assistant or Pandit who may not be B.T. or L.T. has been made eligible for inclusion in the panel for appointment to the post of Headmaster provided he is a graduate with B.Ed. qualification at the time of consideration of the panel. He also brought to our notice G.O.Ms. No. 33, Municipal Administration dated 22nd January, 1968, whereby the Physical Directors working in the Municipal High Schools have also been made eligible for inclusion in the panel of Headmasters provided they have ten years' experience as Physical Directors out of which five years will be class-room experience. They must also have B.Ed., qualification and a pass in the Account Test. The argument is that by virtue of Explanation (2) to rule 2 and G.O.Ms. No. 33 dated 22nd January, 1968, it is clear that persons who are not B.T., L.T. or B.Ed. Assistants who are Telugu Pandits or Physical Directors have also been made eligible for inclusion in the panel of Headmasters proded they have teaching experience and possess B.Ed. qualification. In these circumstances, the learned Counsel for the petitioner says that there is absolutely no rhyme or reason why the Secretarial Assistants who have teaching experience and also possess B.Ed., degree should be excluded from inclusion in the panel of Headmasters.