K. Chennaiah and others vs Govt. of Andhra Pradesh, Higher Education Department, Hyderabad and others

B. Subhashan Reddy, J.—This writ petition has been filed assailing the order dated 17-7-1998 passed by the Andhra Pradesh Administrative Tribunal in OA No.2198 of 1998 and Batch.

Petitioners are the non-teaching staff working in the Directors of Collegiate Education, Intermediate Education and their subordinate offices.

Recruitment to the posts of Junior Lecturers is governed by the Andhra Pradesh Intermediate Education Service Rules framed in G.O. Ms. No.302, Education (IE.1) Department, dated 30-12-1993 in exercise of the powers under second proviso to Article 309 of the Indian Constitution. There are 3 sources of recruitment, i.e., (i) Direct recruitment, (ii) Recruitment by transfer from School Assistants in Category 1(b) of Class-C, Language Pandits including Hindi Pandits and Munshis Grade I in Category I of Class D of Andhra Pradesh School Education Subordinate Service Rules (G.O. Ms. No.302), and (iii) Recruitment by transfer from any other service. Quota provided for the above 3 sources of appointment is 50% for the direct recruits, 40% for the recruits by transfer from the School Assistants and allied services and 10% for the recruits by transfer from the other services in the Education Department.

We are not concerned with the first two sources of recruitment. The concern in the writ petition is only to the extent of 10%, which is allocated for non-teaching staff. The contention of the petitioners is thai such non-teaching staff can only be confined to the personnel working in the Directorate of Collegiate Education, Intermediate Education and their subordinate units, it cannot be extended to the personnel working in the Director of School Education and other subordinate offices of School Education wing. Respondents 9 to 17 and the impleaded respondents represent the latter category.

There is no dispute with regard to the facts-situation and the contentions rest only on the interpretation to be given to the above G.O. Ms. No.302, dated 30-12-1993. The question is, whether the Governmental Memo No.503/IE 1/94-21, dated 21-3-1998, which is in tune with the interpretation sough! for by the petitioners, is valid or not?

The validity of the said Memo depends upon the construction of the same. No other point is argued excepting the said aspect. Learned Counsel for the petitioners stresses that the said Governmental Memo only supplements the gap in the rule framed in G.O. Ms. No.302, dated 30-12-1993. Learned Government Pleader appearing for the official respondents as also the learned Counsel appearing for the unofficial respondents submit that the Governmental Memo mentioned above seeks to supplant the statutory rule, as," while the statutory rule throws open 10% quota to all the non-teaching staff in the Education Department, the Governmental Memo dated 21-3-1998 seeks to restrict the said quota only for the non-teaching personnel serving in the Directorate of Collegiate Education keeping out the personnel working in the School Education Department from consideration. The arguments are not on the touchstone of either Article 14 or Article 16 of the Constitution of India, but only on simple construction of the said Governmental Memo that it is only supplemental and does not supplant the rule.

It is a settled position that whenever the statutory provisions clash with Constitutional provisions, the latter will prevail and the statutory rule framed in excess of the statutory provision will get superseded by the latter. When there is a conflict between a statutory rule and the executive instruction, the executive instruction has to pave way for the statutory rule and to the extent of repugnancy the executive instruction becomes inoperative. This legal principle being clear, let us now examine the correctness or otherwise of the Order of the Tribunal, which, in exercise of its judicial review, has held that the said Governmental Memo exceeds the statutory rule framed in G.O. Ms. No.302, dated 30-12-1993 and that in fact it supplants the quota rule envisaged in the statutory rule and as such is illegal and inoperative.

Rule 3 of G.O. Ms. No.302 is relevant for the purpose and the same is extracted :

"(i) By direct recruitment

(ii) By transfer from School Assistants in Category l(b) of Class (C) Language Pandits and Munshis Grade 1 in Category I of Class (D) of the reissued Andhra Pradesh School Education Subordinate Service Rules

or

By recruitment by transfer from any other service.

Method of Recruitment :

(i) By direct recruitment 50%

(ii)Recruitment by transfer from

(a) School Assistants in Category 1 (b) of Class C Language Pandits including Hindi Pandits and Munshis, Or. I in Category 1 of Class D of Andhra Pradesh School Education Subordinate Service Rules as per combined seniority of Government/Panchayat Raj Teachers 40%

(b) Any other service in Education Department (Non- teaching staff of Education Department) 10%"

Paragraphs 5 and 6 of the Governmental Memo dated 21-3-1998, which are necessary, read as follows :

"5. Government after careful examination of the matter considered that necessary amendments to Rute 8(ii)(b) of the APIES Rules pertaining to appointment to the posts of Junior Lecturers in Government Junior Colleges by transfer from non-teaching staff of Education Department be issued-As the issue of amendments to the Rule will take considerable time, necessary guidelines on the existing rule position may be issued, as there is dire necessity for filling up of the various vacant posts of Junior Lecturers in Government Junior Colleges, which cannot be awaited without any further delay.

Accordingly, Government direct that appointment of Junior Lecturers in 10% quota be made by transfer from non-teaching staff of the other services in Education Department covering the categories of posts in A.P. Ministerial Service working in the Directorate of Collegiate Education, Intermediate Education and its subordinate offices viz., O/o Regional Director of Higher Education, DVEOs and Govt. Degree Colleges and Government Junior Colleges in the State under the categories of Superintendents, Sr. Assistants, Sr. Stenos, Jr. Assistants, Typists, Jr. Stenos, Store Keepers in the ratio as indicated below in the order of priority, and subject to seniority and where seniority is equal, preference shall be given for merit based on percentage of marks obtained in PG Qualification :

Superintendence 3% (In case no person is available this quota may be given to next category of Sr. Asst/Sr. Stenos)

Sr. Assts/Sr. Stenos 3% (In case no person is available this quota may be given to next category of Jr. Asst/''fypists/Jr. Stenos/ Store Keeper)

Jr. Assts/Typists/ 4% (In case no person is available, this Jr. Stenos/Store quota may be given to be filled by School Keepers Assistants under Rule 8(ii)(a).

The appointing authorities shall call for options/willingness from the above categories of persons for making appointment to the posts of Junior Lecturers and issue orders keeping in view the above guidelines by following other procedure like conducting DPC etc."

By a close reading of both the statutory rule and the executive instructions contained in the above Governmental Memo, it is so clear that the rule throws open to all the personnel working as non-teaching staff in the entire Education Department regardless of the fact as to whether the same is an educational institution imparting college education or school education or otherwise. It is couched in widest language possible and the stress is on the words ''any other service in Education Department (Non-Teaching staff of Education Department)''. The said widest scope provided for the entire non-teaching staff in the entire Education Department is sought to be restricted by the Governmental Memo limiting to the non-teaching staff working in the Directorate of Collegiate Education, Intermediate Education and its subordinate offices, i.e. Regional Director of Higher Education, DVEOs, Government Degree Colleges and Government Junior Colleges. This limiting of the scope of consideration for appointment of non-teaching staff to the posts of Junior Lecturers in 10% quota runs contra to the one provided to all the non-teaching staff in the entire Education Department provided in Rule 3 of G.O. Ms. No.302, dated 30-12-1993 and as such, the Governmental Memo seeks to supplant the statutory rule mentioned above and, therefore, is illegal and inoperative. Consequently, we uphold the judgment rendered by the A.P. Administrative Tribunal in OA No.2198 of 1998 and batch on 17-7-1998.

For the above reasons, the writ petition fails and is accordingly dismissed. No order as to costs.