JUDGMENT
1. Both the writ petitions can be disposed of by a common judgment.
2. The Writ Petition No.6041/1997 was filed assailing the Memo No.2807/CE.II/2/ 95-7, Education Department, dated 14-2-1997, issued by the 1st respondent and for consequential direction to pay the arrears of salary with effect from 16-4-1990.
3. The facts in nutshell are that the petitioner passed the Post-Graduation in Chemistry in II Class, and thereafter she was appointed as Lecturer in the Chemistry on 21-6-1995 at St. Joseph’s College for Women, Waltair, Visakhapatnam. The post in which the petitioner was appointed was a grant-in-aid post since 1958 and petitioner was drawing grant-in-aid scales eversince her, appointment. In 1977, she had to resign the post for personal reasons and shifted her residence to Hyderabad. Thereafter, the petitioner applied for the post of Lecturer in the 3rd respondent College and she was selected and appointed as Lecturer in Chemistry on 7-9-1978. The services of the petitioner were also regularised with effect from the same date and the appointment was also approved by the Osmania University by proceedings dated 16-7-1984.
4. While so, the Government issued proceedings in G.O. Ms. No.173 dated 4-5-1991 admitting to grant-in-aid four posts of Lecturers in Chemistry in the 3rd respondent College with effect from 16-4-1990. As the petitioner was not having 55 per cent of the marks in the Post-Graduation so as to be eligible to claim grant-in-aid post, the 3rd respondent-institution approached the Director of Education for relaxing the Rules. More over the petitioner was also worked in grant-in-aid post ‘while she was at St. Joseph’s College. The petitioner made number of representations in this regard. Finally, the 1st respondent issued proceedings in Memo No.296/2011-91/C.E.II-2/93-10 Education (C.E.II-2) Department, dated 17-8-1994 relaxing the requirement of possessing 55 per cent of the marks in the Post-Graduation for the purpose of regularising the services in the U.G.C. scales of pay with effect from 16-4-1990 and in the said Memo the Government have also condoned the period of break and treated the service rendered by her in St. Joseph’s College and 3rd respondent College as continuous for the purpose of career advancement scheme. It appears that the said order was not implemented and the petitioner was not released the U.G.C. scales of pay. The Government, however, by D.O. Letter dated 22-12-1994 directed the 2nd respondent to implement the orders immediately and report compliance. But, there was no response. Therefore, the petitioner approached this Court by filing Writ Petition No.26850/1995 for the implementation of the Memo issued by the Government dated 17-9-1995. After notice was issued to the Government, another Memo was issued by the Government on 20-12-1995 directing the 2nd respondent to implement the Memo dated 17-8-1994 forthwith. The 2nd respondent by proceedings dated 16-1-1996 admitted the petitioner to grant-in-aid with effect from 16-4-1990. Therefore, the writ petition was disposed of with a direction to implement the 1st respondent’s Memo dated 17-8-1994 and 20-12-1995. The petitioner was being paid U.G.C. scales from February, 1996 onwards, even though the petitioner was admitted to the grant-in-aid post with effect from 16-4-1990. Since the orders of this Court were not implemented, (he petitioner also filed CC No.2S3/1996 and the same was closed on the assurance given by the Government Pleader that the salary will be paid during the course of time. While the matter stood thus, the petitioner was issued with a show cause notice dated 9/13-9-1996 proposing to cancel the memo dated 17-8-1994 and 20-12-1995 on the ground that the petitioner did not secure 55 per cent of the marks in the Post Graduation course and that the petitioner did not improve the qualification. The petitioner submitted explanation. But, however, the impugned orders are passed on 14-2-1997 cancelling the earlier memo dated 17-8-1994 and 20-12-1995. The said orders are assailed in this writ petition.
5. In the counter filed by the 2nd respondent, it is stated that the petitioner did not possess 55 per cent marks in the Post Graduation and therefore as per the rules she is not eligible for U.G.C. scales. However, the Government admitted that the petitioner worked as Lecturer in the Chemistry at St. Joseph’s College for Women from 21-6-1965 to 6-7-1977 in a grant-in-aid post and also” had drawn U.G.C. scales of pay. It was further stated that the order issued in the Memo dated 17-8-1994 could not be
implemented as the petitioner has resigned
the post from St. Joseph’s College for Women,
Visakhapatnam and she has no right to claim
past service. It is also stated that she was
not qualified to hold the post of Lecturer as
she secured less than 55 per cent of marks,
in the Post-Graduation which is necessary
requirement for appointment to the post of
Lecturer. If the Orders are implemented it
will result in huge financial loss. Further, it
amounts to conferment of double benefits to
the individuals. Keeping in view these
considerations, the Government issued the
impugned Memo and the said Memo is quite
legal and valid.
6. It is the case of the petitioner that the impugned order is wholly illegal and without jurisdiction. The respondents are estopped from cancelling the earlier order. It is also the case of the petitioner that the power purporting to be exercised under Section 91 of the Education Act is wholly misconceived. It is also submitted that the Government issued relaxation to number of Lecturers and they were not withdrawn at any time subsequently.
7. The learned Government Pleader submits that when an order is passed under mistaken impression, it is always open for the Government to rectify the same by giving opportunity to the petitioner. Since the petitioner was not eligible for the post of Lecturer under the orders issued earlier were under mistaken impression, the action of the Government in issuing the revised order cannot be said to be illegal or arbitrary.
8. The point that arises for consideration is whether the impugned order is sustainable in law?
9. The undisputed facts are that the petitioner was initially appointed as Lecturer in St. Joseph’s College for Women at Waltair, Visakhapatnam and she was drawing the U.G.C. scales applicable to the post of Lecturer from 21-6-1965 to 6-7-1977. She resigned the post of Lecturer at Visakhapatnam, but however she was again appointed in the 3rd respondent college as Lecturer in Chemistry and the appointment was also approved by the Osmania University on 16-7-1984 with effect from 7-9-1978. The Government by proceedings dated 17-8-1994 basing on the report of the Director of Collegiate Education, the 2nd respondent relaxed the qualification of obtaining 55 per cent of the marks in the Post Graduation Course for the purpose of regularising her services in the U.G.C. Scales of pay Rs.2200-4000 effect from 16-4-1990. The said Memo is extracted below:
“In the circumstances reported by the Director of Collegiate Education (now Commissioner of Collegiate Education) A.P., Hyderabad in his letters cited, Government hereby relax the qualification of obtaining 55% marks in the Post Graduate Examination in favour of Smt. Vaswnathi Rajs, Lecturer in Chemistry, Loyola Academy Degree College, Alwal, Secunderabad for purpose of regulating her service in the UGC scale of pay Rs.2200-4000 with effect from 16-4-1990. The aided service rendered by the above individual in St. Joseph’s College for Women Visakhapatnam and the aided service in the Loyola Academy Degree College, Alwal, Secunderabad with effect 16-4-1990 be combined for the purpose of Career Advancement Scheme by condoning the break in service of more than one month, as a special case”.
The 2nd respondent by D.O. Letter dated 30-11-1994 brought to the notice of the Government that relaxing the rule relating to securing of 55 per cent of marks in Post Graduation, will become a precedent and it will result in huge financial commitment to the Government. Therefore, directed the Government to reconsider the orders issued on 17-8-1994. In reply to that D.O. letter, the Government by a further D.O. letter dated 22-12-1994, refused to revise the order and directed the 2nd respondent to implement the memo dated 17-8-1994 and report compliance. The said order is extracted below:
“Sub: Private Aided Colleges – Loyola Academy Degree College, Alwal, Secunderabad – Smt. Vaswnathi Raje, Lecturer in Chemistry – Relaxation of securing 55% marks in P.G. Courses and admission to Granl-in-aid-Reg.
Reg: 1. From the CCE DO Lr.No. 1151/PG 3-4/91, dated 9-9-1991.
2. From the DCE Lr.Rc.No.l 151/PC.IH-
4/91, dated 17-8-1994. ,
3. Government Lr.No.296/2011/91 CE.II-2/93-10 Edn, dated 17-8-1994.
4. From the CCE D.O. Lr No.11 5 I/PC 3-4/91, dated 30-11-1994.
Please refer to the correspondence cited, 1 with you to recall that the case of Smt. Vasumathi Raje, Lecturer in Chemistry, Loyola Academy was recommended by your Department through the references first and second cited. However, no sooner was your office recommendation/request accepted and orders issued by Government in the Memo. 3rd cited than you had a change of mind and addressed Government to revise the orders issued. Such inconsistency, I may point out, apart from bringing down the image of Government could also land Government in unnecessary legal complications. I request you therefore to implement the orders issued in the Government Memo. 3rd cited immediately and sent a report in compliance to Government”.
In the meanwhile, the WP No.26850/1995 was filed. On notice having been ordered by this Court, the Government issued a Memo dated 20-12-1995 to the following effect:
“Sub: Private Aided Colleges – Loyola Academy Degree College, Alwal, Secunderabad – Smt. Vasumathi Raje, Lecturer in Chemistry Relaxation of securing 55% marks in P,G. Course and admission to Grant-in-aid-Reg.
Ref: 1. Government Memo No.296/2011-91/ CE.11-293-10 dated 17-8-1994 Education Department.
2. From the Commissioner of Collegiate Education, A.P. Hyderabad D.O. Lr.No.1151/PC3-4/91 dated 10-11-1994,
3. From Sri P.V.S.S.S. Rama Rao. Advocate, Notice dated 29-11-1995 in WPNo.26850/95.
In the circumstances reported by the Commissioner, Collegiate Education, A.P. Hyderabad in his D.O. letter second cited, Government after careful examination of the matter, hereby direct the Commissioner, Collegiate Education, A.P. Hyderabad to implement the orders issued in Memo, first cited immediately and furnish compliance report to Government under intimation to the Counsel for the petitioner.”
Consequently the 2nd respondent issued further proceedings dated 16-1-1998 admitting the petitioner to the grant-in-aid pos! with effect from 16-1-1990. The writ petition filed by the petitioner in WP No.26850/1995 was disposed of on 29-1-1996 basing on the Memo issued by the Government dated 20-12-1995 in the following terms:
“Learned Counsel for the petitioner draw my attention to the effect that the Government relaxed the qualification required for the petitioner for the purpose of regulating her scales of pay by virtue of a Memo, dated 17-8-1994 and the writ petition was filed only for implementation of that direction of the Government. It is pointed out that by a recent Memo, dated 20-12-1995 the first respondent has passed a consequential order. But the second and third respondents have not yet passed consequential orders. In the circumstances, I consider it sufficient io direct the second and third respondents to implement to the directions given by the first respondent in the two memos cited above within one month from the date of receipt of a copy of this order”.
Thus, it is seen that the Government having granted relaxation and condoned the break of service, issued further orders dated 20-12-1995 directing the authorities to implement the orders forthwith. Even the writ petition was disposed of directing the 2nd and 3rd respondent to implement the directions given by the 1st respondent in the two memos dated 17-8-1994 and 20-12-1995 within one month. But, however, contrary to the directions issued by this Court in the aforesaid writ petition, the Government issued memo dated 13-9-1996 proposing to cancel the aforesaid two memos on the ground that the petitioner did not possess 55 per cent of the marks in the Post-Graduation and that the approval granted by the Osmania University by mistake.
10. The petitioner was admittedly granted relaxation from possessing the 55 per cent of marks in the Post-Graduation and also condoned the break of service for the purpose of career advancement scheme. The petitioner had also drawing U.G.C. scales prior to appointment in the 3rd respondent college. It cannot be said that the Government was not aware of the situation when the memo dated 17-8-1994 and 20-12-1995 was issued. Further, when the 2nd respondent brought to the notice of the Government that such a relaxation would create huge financial loss to the Government, yet the Government directed the 2nd respondent to implement the order as the relaxation was given as a special case to the petitioner. Moreover when the writ petition was filed for implementation of the said memos, it was brought to the notice of this Court that direction was issued on 20-12-1995 for implementing the memo dated 17-12-1994. The Government never pleaded before the Court that the grant of such relaxation was contrary to law and under mistaken impression. Having suffered the direction in the hands of the petitioner, would it be justified on the part of the 1 st respondent to resile from the commitment and make attempts to cancel the earlier orders daled 17-8-1994.
11. The learned Government Pleader however submils that it is always open for the Government to rectify the mistake committed by them and he relies on the judgments of the Supreme Court reported in Chandigarh Administration v. Jagjit Singh, and Harpal Kaur Chahal (Smt.) v. Director, Punjab Instructions, Punjab, 1995 Suppl. (4) SCC 706. These judgments in my opinion do not help the respondents in any manner. In Harpal Kaur’a case (supra), applications for appointment to the Physical Training Instructor was called for in which the Appellant applied, but she did not possess the requisite qualification as on the date of application. But, however, she was selected and appointed on 4-1-1971. She filed writ petition when she was terminated. The learned Judge held that the date of Interview was criteria and since the petitioner possessed the qualification as on the date of the interview, the termination was held illegal. But, in Appeal, the Division Bench reversed the order holding that the date of receiving the application is the criteria. On an appeal by the unsuccessful Appellant, the Supreme Court held that the applicant should possess the qualification as on the last date of the receipt of the applicant. Therefore, set aside the order of appointment. But, however, since the appointment was continued from 1971 by virtue of the orders of the Court, the directions were issued to the effect that the Appellant may make an application to the Government to consider her case and the Government may take decision in this behalf. The service of the Appellant was directed not to be terminated for a period of three months within which time, the petitioner should apply to the Government. The principle as to the reckoning of the qualification on the date of the application or as on the date of the interview was finally settled by the Supreme Court. But, in the instant case, the Government is aware of the marks possessed by the petitioner granted relaxation. Therefore, this case has no application.
12. In Chandigarh Administration’s case (supra), in an auction of lease-hold rights for 99 years, the petitioner was the highest bidder. He deposited 30 per cent of money immediately, the balance was payable in three equal instalments. The petitioner, however, defaulted in payment of the same. Consequently, notice was issued as to why the lease should not be cancelled. Accordingly, it was cancelled duly forfeiting certain amounts. The Appeal filed by the petitioner was dismissed with certain modifications, the revision was also dismissed and the refund was made to the petitioner. Thereupon the petitioner after receipt of the refund filed review and it was also dismissed on 10-1-1980. A second review petition however was allowed and the Chief Commissioner directed the petitioner to be restored the plot provides he makes payment within sixty days, in default, the review petition stands dismissed. The petitioner failed to comply with the order. Consequently, the second review also stood dismissed. A mercy petition made with the same fact. He filed writ petition in the High Court in 1990 offering to pay amount with 12 per cent interest. However, the said writ petition was dismissed on the ground that the petitioner was persistent defaulter. Again the petitioner approached the Estate Officer for reconciliation and the same was rejected on 18-12-1991 against which the petitioner filed writ petition including the cancellation of the lease. The writ petition was allowed by the High Court on the ground that inasmuch as in another case pertaining to Smt. Prakash Rani, the Administrator had restored the plot, the case of the petitioner should also get the same treatment. On a Special Leave having been granted by the Apex Court, it was set aside. The Supreme Court observed thus:
“Generally speaking, the mere fact that the respondent-authority has passed a particular order in the case of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner, if the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent-authority to repeat the illegality or to pass another unwarranted order. The extraordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because the respondent-authority has passed one illegal/unwarranted order, it does not entitle the High Court to compel the authority to repeat that illegality over again and again. The illegal/unwarranted action must be corrected, if it can be done according to law – indeed, wherever it is possible, the Court should direct the appropriate authority to correct such wrong orders in accordance with law -but even if it cannot be corrected, it is difficult to see how it can be made a basis for its repetition. By refusing to direct the respondent-authority to repeat the illegality, the Court is not condoning the earlier illegal act/order nor can such illegal order constitute the basis for a legitimate complaint of discrimination. Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law. Of course, if in case the order in favour of the other person is found to be a lawful and justified one it can be followed and a similar relief can be given to the petitioner if it is found that the petitioners” case is similar to the other persons’ case. But then why examine another person’s case in his absence rather than examining the case of the petitioner who is present before the Court and seeking the relief. Is it not more appropriate and convenient to examine the entitlement of the petitioner before the Court to the relief asked for in the facts and circumstances of his case than to enquire into the correctness of the order made or action taken in another person’s case, which other person is not before the case nor is his case. In our considered opinion, such a course – baiting exceptional situations – would neither be advisable nor desirable. In other words, the High Court cannot ignore the law and the well-accepted norms governing the writ jurisdiction and say that because in one case a particular order has been passed or a particular action has been taken, the same must be repealed irrespective of the fact whether such an order or action is contrary to law or otherwise. Each case must be decided on its own merits, factual and legal, in accordance with relevant legal principles. The orders and actions of the authorities cannot be equated to the judgments of the Supreme Court and High Courts nor can they be elevated to the level of the precedents, as understood in the judicial world. (What is the position in the case of orders passed by authorities in exercise of their quasi-judicial power, we express no opinion. That can be dealt with when a proper case arises.)”
But, in the instant case, it is not the case of the Government that the order was passed under mistaken understanding. It was also not disputed that similar relaxations were given to other Lecturers and those orders became final. Admittedly, in the instant case, the Government was aware of the situation that the petitioner did not possess the requisite minimum marks. For that purpose, the orders of relaxation of the rule were issued. It is not the case of the Government, that it was not competent to grant relaxation. In fact the 2nd respondent by letter dated 30-11-1994 also brought to the notice of the Government that the relaxation granted to the petitioner will become precedent and others will also follow the suit. Yet the Government issued another memo dated 20-12-1994 reinstating its stand and directed the orders passed in Memo dated 17-8-1994 should be implemented forthwith. Further more, the University Grants Commission also issued directions on 3-8-1978 clarifying that the relaxation can be granted to the teachers who may move from one College to another. Moreover, the petitioner was holding the post of Lecturer with U.G.C. scales in St. Joseph’s College for Women, Waltair, Visakhapatnarn as she was appointed prior to 1976. The requirement of 55 per cent of marks came into force only in 1976 in G.O. Ms. No. 1072 dated 26-11-1976. The Government after considering the report of the 2nd respondent dated 30-11-1994 issued directions to implement the orders in earlier Memo dated 17-8-1994. The respondents also suffered an order from this Court to implement the Memo dated 17-8-1994 and 20-12-1995. The orders passed in the earlier writ petition were not modified. Therefore, the said order has to be implemented. Virtually, the impugned order passed by the Government has nullifying effect on the orders passed by this Court in WP No.26850/1995. The Government cannot escape its responsibility of implementing the order in the guise of stand that it has issued the earlier order under mistaken understanding, which is not at all correct. The Government was aware of the marks obtained by the petitioner and that the petitioner resigned the job in the earlier College having known these facts and having realised that it has power under the Rules or relax such a condition, the Government issued Memo dated 17-8-1994. Therefore, the Government is estopped from either cancelling or modifying the said order on the pretext that it was passed under a mistaken impression. Any such attempt will be wholly illegal and without jurisdiction. Thus, I find that the impugned orders are unsustainable in law.
13. The matter can also be viewed from another angle. The impugned order is nothing, but review of the earlier order. It has to be considered whether the Government has the power of review under the provisions of Andhra Pradesh Education Act. In the instant case, the order was passed purporting to be under Section 90(1) of the Education Act. Section 90 deals with the revision. The power is given under Section 90 to revise the orders of the lower authorities and it does not empower the Government to review its order. But, however, the learned Government Pleader submits that there was a wrong quoting of provision, it should be treated as a review under Section 91. Even assuming that it is a review under Section 91, the review is not permissible as the review was -done after the prescribed period. It is not in dispute that the power of review must be specifically conferred on the authorities. Section 91 is extracted below:
“Review: (1) The Government or the Director may sno motu at any time or on an application received from any person interested within ninety days of the passing of any order under the provisions of this Act, review any such order, if it was passed by them of him under any mistake, whether of fact or of law, or in ignorance of any material fact.
(2) The provisions contained in the proviso to sub-section (1) and in sub-sections (2) and (3) of Section 90 shall, so far as may be, apply in respect of any proceeding under this Section as they apply to a proceeding under sub-section (1) of that Section”.
in the instant case, admittedly the power of review is available to the authorities but that power has to be exercised within the limitation fixed under the statute. The review having been undertaking, beyond the period prescribed tinder the Act, the action of the Government in reviewing the earlier order is illegal and without jurisdiction.
14. For the aforesaid reasons, I have to necessarily allow the writ petition. Accordingly, the writ petition is allowed and impugned orders are quashed. The respondents are directed to release the U.G.C. scales to the petitioner with effect from 16-4-1990 and also regulate the services for the purpose of career advancement scheme treating the period as continuous right from 29-6-1965 as Lecturer and release the consequential benefits.
15. The petitioner retired from service w.e.f. 30-6-1998 and pensionary benefits have not been fixed and paid, therefore she filed the WP No.33923/!998 for releasing the pensionary benefits and oilier retirement benefiis.
16. In view of the orders passed in WP No.6041/1997, the petitioner is entitled for revised pensionary and other post retirement benefits. Writ Petition No.33923/1997 is accordingly allowed and the respondents are directed to re-fix the pension and other retireniental benefits consequent on the orders of this Court in WP No.6041/1997. The respondents are directed to comply with the above orders within a period of three months from the date of receipt of a copy of this order.
17. No costs.
