1. The time has come to act and the Court should react to the situation brought before it in W.P.M.P No. 17958 of 1994.
2. To have an inkling of the background of the present W.P.M.P 17958 of 1994 filed by the writ petitioners, few facts without going to the specifics and details are required to be stated. The genesis of the dispute between the parties traceable to the year 1989 when there was an extraordinary drive by the Respondents State and Panchayat Raj Institutions to recruit teachers specially called as ‘Special Teachers’ and ‘Special Language pandits, ‘thousands in number, to feed the needs of the educational institutions run and managed by the respondents State and Panchayat Raj Institutions. To enable this, the respondents State and Local Authorities had the enabling provisions in G.O.Ms No. 429 dated 13-10-1983 issued by the State Government. Clause (rule) 6 of G.O.Ms No. 429 specifically provided that the selection of the candidates to those posts shall be made by the District Selection Committee constituted in G.O.Ms No. 289 Panchayat Raj Department dated 28-4-1993, in respect of posts sanctioned by the Government, for Government and Panchayat Raj Institutions. The said clause further provided that the procedure for selection as laid down in G.O.Ms No. 716 Panchayat Raj Department dated 13-11-1981 shall be followed, by the District Selection Committees regarding calling of candidates from Employment Exchanges, written examination, interviews etc. The petitioners, among others, were applicants for the posts of Special Teachers and Special Language pandits. Tests were conducted, interviews were held; selection list of the candidates was prepared and the appointments were made. But, the petitioners were not appointed. The petitioners cried that they have secured 40% of marks in both written and oral tests and therefore they were entitled to be included in the select list and they were entitled to be appointed as Special Teachers and Special Language Pandits in terms of G.O.Ms No. 716, Panchayat Raj Department dated 13-11-1981 read with G.O.Ms No. 429 dated 13-10-1983. The petitioners also claimed that the select list which is required to be prepared in terms of G.O.Ms No. 716 is required to be valid and should be operated till another list for the succeeding year is prepared. The cry of the petitioners went unheeded and unattended. The respondents State and Panchayat Raj Institutions resisted the claim of the petitioners contending that the select list is required to be prepared not in terms of G.O.Ms No. 716 but in terms of G.O.Ms No. 231, Panchayat Raj and Rural Development department dated 31-3-1989 and therefore the petitioners were not entitled to be included in the select list. The respondents also contended that the select list could be valid only for a period of one year from the date of its approval by the District Selection committee as provided in G.O.Ms No. 231. The dispute between the parties was carried before the Andhra Pradesh Administrative Tribunal, shortly referred to as the ‘A.P.A.T’, constituted under the provisions of the Administrative Tribunals Act, 1985 in R.P Nos. 23505 to 23515 of 1989 and connected R.Ps O.As and M.As Among other questions the questions raised before the A.P.A.T were i) whether the selection of the candidates for the posts of Special Teachers and Special Language Pandits was governed by the provisions of G.O.Ms No. 716 or G.O.Ms No. 231 and ii) what is the currency of the select lists prepared for the posts of special Teachers and whether it was current till the next list was prepared as urged for the petitioners or for only one year from the date of approval as urged by the respondents. The Bench of the A.P.A.T speaking through its the then Chairman. K.S Puttaswamy, J. by its judgment dated 22-8-1990 ruled that the selection of the candidates for the posts of Special Teachers and the currency of the select list for the posts of Special Teachers were governed by the provisions of G.O.Ms No. 716. In view of the said finding, the A.P.A.T issued certain consequential directions to the respondents. There is no dispute that the judgment and order of the A.P.A.T dated 22-8-1990 has become final inasmuch as nobody had filed any further appeal against the said judgment and order till date. The respondents, despite judgment and order of the A.P.A.T did not appoint the petitioners. The frustrated petitioners looked helpless and without remedy. Therefore the petitioners approached this court in W.P No. 518 of 1993 and connected writ petitions seeking directions to the respondents to appoint them as Special Teachers and to enforce the judgment and order made by the A.P.A.T dated 22-8-1990. While doing so, the petitioners also called in question the constitutional validity of Article 323-A(2)(d) of the Constitution of India to the extent it empowers Parliament by law, to exclude the jurisdiction of the High Courts under Article 226. The petitioners also sought a declaration that Section 28 of the Administrative Tribunals Act, 1985 to the extent it divests the High Courts of their jurisdiction under Article 226 as unconstitutional. The W.P 518/1993 and batch of connected writ petitions and writ appeals landed before the Full Bench of this Court for decision on reference. The Full Bench of this Court by its judgment dated 26-10-1993 declared that Article 323-A(2)(d) of the Constitution of India is unconstitutional to the extent it empowers parliament, by law, to exclude the jurisdiction of the High Court under Article 226. The Full Bench also declared that Section 28 of the Administrative Tribunals Act, 1985 to the extent is divests the High Court of its jurisdiction under Article 226 is unconstitutional. However the Full Bench declined to decide the writ petitions and the writ appeals on the ground that the petitioner and the appellants have an effective alternate remedy before the A.P.A.T The Full Bench further directed that if the petitioner approached the A.P.A.T shall entertain their representations and dispose of them in accordance with law.
3. Being aggrieved by the judgment and order of the Full Bench dated 26-10-1993, the Union of India has filed Civil Appeal No. 169/1994 in the Supreme Court and the Supreme Court on 14-1-1994 suspended the operation of the judgment of the Full Bench. Thereafter wards some of the petitioner herein filed I.A No. 4 in Civil Appeal No. 169/94 seeking direction to the respondent State Government to implement the interim orders granted by this Court dated 12-11-1993 made in W.P.M.P Nos. 21607, 21608 and 21609 of 1993 in W.P No. 17104 and batch of writ petitions. The Supreme Court rejected the I.A No. 4 but while doing so was pleased to observe that the order of stay made by it on 14-1-1994 will not come in the way of any of the aggrieved parties from approaching the Tribunal.
4. Thereafterwards the petitioner No. 1 (Sakinala Harinath) filed O.A No. 2400/1994 before the A.P.A.T seeking a declaration that G.O.Rt No. 119 P.R Department and G.O.Ms No. 120 P.R Department both dated 23-2-1994 issued by the Government of Andhra Pradesh as illegal arbitrary, unconstitutional and unsustainable. He also sought for a direction to the respondent to appoint the appoint the applicants as teachers in terms of various judgments. The A.P.A.T by its order dated 21-7-1994 dismissed the original Application filed by the first petitioner herein.
5. In the meanwhile after the Full Bench of this Court delivered the judgment on 26-10-1993 in W.P No. 518/1993 and connected writ petitions and writ appeals the petitioners filed the present writ petition No. 17794/1993 and the connected writ petitions on 6-11-1993. Along with the said writ petition the petitioners also filed W.P.M.P Nos. 21607, 21608 and 21609 of 1993 seeking a direction to the respondents to appoint them forthwith as teachers in the vacancies then available pending hearing of the writ petitions in those W.P.M.Ps this Court (B. Subhashan Reddy, J.) on 12-11-1993 made the order which reads thus:
“The order dated 22-8-1990 passed by the Andhra Pradesh Administrative Tribunal, Hyderabad in R.P Nos. 23505 of 1989 and bath had become final as it is not shown to me that the said order has been annulled varied or suspended by the Supreme Court G.O.Ms No. 568, Panchayat Raj and Rural Development (Estt. VIII) Department dated 21-12-1992 issued subsequent to the above judgment of the Tribunal was challenged before this Court. A Division Bench by order dated 30-4-1993 passed an order to appoint the petitioners therein in the vacancies available as teachers subject to the condition that they file written undertaking to the following effect.
(a) That their appointment is purely adhoc and subject to the result of the writ petitions and writ appeals.
(b) That they should not claim any equity in their favour because of these appointments pursuant to the present order.
(c) In case ultimately the petitioners fail and this Court directs that the candidates who have been appointed had no right to be appointed, then they shall forthwith vacate their appointment without any dispute and will accept their terminations without any demur.
6. This order of the Division Bench was later followed by another Division Bench, in writ petition No. 6503 of 1993 and further by some other learned Judges in other cases; the latest order is that of my learned brother P. Venkatarama Reddi J., in W.P.M.P No. 13861/1993.
7. Having regard to these, I found a prima facie case in favour of the petitioners and as such I issue interim direction to appoint the petitioners subject to the condition that they file written undertaking before the concerned authorities to the following effect:
(a) That their appointment is purely adhoc and subject to the result of the writ petitions.
(b) That they should not claim any equity in their favour because of these appointments pursuant to the present order.
(c) In case ultimately the petitioners fail and this Court directs that the candidates who have been appointed had no right to be appointed, then they shall forthwith vacate their appointment without any dispute and will accept their terminations without any demur.
“I also make it clear that this Order does not mean to say that the persons who have failed and who are not in the select list are eligible for any appointment. Such of those petitioners who have secured qualifying marks and who are empannelled and found in the select list shall be given appointment, in order of merit already arranged in the select list and subject to availability of the vacancies.
8. Post these W.P.M.P after four weeks for counters and disposal of these W.P.M.Ps
9. The above order of mine shall be forthwith implemented by the respondents.”
10. W.P.M.P No. 917/1994 is by the impleaded respondents 15 in number, seeking vacation of the interim order dated 12-11-1993. Similarly W.V.M.P No. 678/1994 is by the respondents 1 to 3 - State Authorities seeking vacation of the interim order dated 12-11-1993. W.P.M.P No. 13662/1994 is by the petitioners seeking a direction to the respondents to initiate the recruitment process keeping secondary Grade Teachers posts equal to the number of qualified teachers in each District unfilled. W.V.M.P 843/1994 is by the respondents 1 to 3 - the State Authorities, seeking vacation of the interim order dated 18-8-1994 made in W.P.M.P 5532/1994.
11. In the meanwhile the Governor of Andhra Pradesh in exercise of the powers conferred by Section 78 and Section 99 of the Andhra Pradesh Education Act, 1982 and Sub-section (4) of Section 169 and Section 4 of Section 195 and Section 268 of the Andhra Pradesh Gram Panchayats Act, 1994 and the proviso to Article 309 of the constitution of India has framed the Rules called the Andhra Pradesh Direct Recruitment for posts of Teachers (Scheme of Selection) Rules, 1994 providing for the procedure for recruitment for the posts of teachers. Under the said Rules the Director of School Education, Andhra Pradesh, published a Notification in the issue of the Deccan Chronicle dated 29-7-1994 calling for applications from the eligible candidates for the posts of Teachers. The Writ Petitioners have filed W.P.M.P No. 17958/1994 praying the court to suspend the operation of the said notification. W.P.M.P No. 17958/1994 was heard on 17-8-1994. This Court after hearing Sri S. Ramachandra Rao, the learned counsel for the petitioners and the learned Government Pleader made an interim order permitting the respondents to conduct the written tests fixed on 21-8-1994 but directing the respondents not to finalise the selection of the candidates for the posts of teachers till further orders from this Court.
12. All these petitions are posted before this Court today for hearing.
13. Sri S. Ramachandra Rao, the learned Counsel for the petitioners, the learned Advocate General for the respondents-State and Panchayat Raj institutions and Sri B. Timoti, the learned counsel for the impleaded respondents were heard extensively.
14. Sri S. Ramachandra Rao, the learned counsel for the petitioners contended that the interim order granted by this Court on 12-11-1993 still exists and operates and therefore without complying with the directions issued by this Court in the said order the respondents are not entitled to proceed with the recruitment to the posts of teachers. He further submitted that the direction issued by this Court on 12-11-1993 is not at all complied with and the respondents have come up with a false plea that the directions are complied with. On the other hand, the learned Advocate General submitted that the main writ petition itself is not maintainable particularly in view of the judgment of the Full Bench dated 26-10-1993 made in W.P No. 518/1993 and connected writ petitions and also the order made by the Supreme Court on 12-5-1994 in I.A No. 4 filed in C.A No. 169/1994; the petitioners are guilty of stating falsehood and suppressing material facts and therefore they are not entitled to any equitable remedy at the hands of this Court under Article 226 of the Constitution; the petitioners are guilty of abusing the process of law inasmuch as instead of challenging the correctness and validity of the judgment and order of the A.P.A.T dated 21-7-1994 made in O.A No. 2400/1994 before the Supreme Court the petitioners are seeking the same relief in this Court. Sri V. Timoti appearing for the impleaded respondents supported the contentions advanced by the learned Advocate General.
15. The dispute between the parties bristles with many controversies touching both facts and law. Many facts of the dispute were highlighted by Sri S. Ramachandra Rao the learned counsel for the petitioners and the learned Advocate General in support of their respective contentions with reference to the pleadings of the parties and the case law. I refrain myself from going into the merits of those controversies at this interlocutory stage particularly in view of the fact that the very question of jurisdiction of this court to entertain the petitions relating to the services under the State is pending before the Apex Court for an authoritative pronouncement. Added to this, the judgment of the Full Bench dated 26-10-1993 made in W.P No. 518/1993 and connected cases and the interim order made by the Supreme Court on 12-5-1994 in I.A No. 4 filed in C.A No. 169/1994 clearly indicate that the aggrieved persons should approach the A.P.A.T for redressal. In that view of the matter, this court, in normal course, would have declined to entertain the present W.P.M.P No. 17958/1994. But, one aspect of the dispute has deeply touched the conscience of the court and reminded it of its constitutional obligation to enforce the interim writ issued by this Court and thereby to uphold the Rule of Law. A Division Bench of this Court has taken a view that this court can entertain interlocutory applications and pass appropriate interim orders if such interlocutory applications are filed in the writ petitions filed in this Court before 14-1-1994. The present writ petition was filed in this Court on 6-11-1993. I am bound by the view taken by the Division Bench.
16. The writ issued by this Court, whether it is interim or final, should run all the time in all the places over which this court has territorial jurisdiction. The writ issued by this Court should not run away. The writ of this Court is nothing but a constitutional command to do certain thing or refrain from doing certain thing. The course of the writ cannot be reversed or stalled or meddled with by any one except by the ‘Courts above’ this Court. Public Law Review includes not only the power of this Court under Article 226 and 227 do enforce legal rights and legal obligations of the parties, before it but also includes the power, nay, the duty to see that the writs issued by this court are respected and obeyed in spirit and contents. No body shall be permitted to meddle with the writ of this Court either directly or indirectly. At the same time, nobody except the ‘Courts Above’ this court shall be permitted to adjudge the validity of the writs issued by this Court. The power of adjudging the order of this Court cannot be conceded to the political executive or to the bureaucracy. Even accepting the submission of the learned Advocate General that the main writ petition itself is not maintainable and incompetent and therefore the interim order granted by this Court on 2-11-1993 is without jurisdiction as correct, nevertheless the interim writ issued by this Court on 12-11-1993 still exists and operates. Even ultra vires and void orders remain operative till they are declared to be ultra vires or void by a competent court of Law. This is what the Apex Court in spirit declared in the case of State of Punjab v. Gurudeva Singh (1) (1991) 4 SCC 1.
17. There is no dispute between the parties that the interim writ issued by this Court on 12-11-1993 in W.P.M.P Nos. 21607, 21608 and 21609 of 1993 is not reversed or set aside by the ‘Courts Above’ this Court and still exists and operates and it has reached finality. It cannot be said and it is not said that if the respondents State and Panchayat Raj Institutions are permitted to make recruitments for the posts of Teachers in pursuance of the Notification issued by them, the interim order granted by this Court on 12-11-1993 will not be violated. Realising his impediment in their way, the respondents State and Panchayat Raj Institutions, in their counter-affidavit have come up with a clever but condemnable plea that the order made by this court on 12-11-1993 was complied with even before the said order was made. I am constrained to observe that this kind of totally untenable defence is not expected from a responsible and responsive State authorities or from the panchayat Raj Institutions. In a matter like this, the State shall not treat the petition as an adversary litigation. The State should approach the issue with open mind and objectivity. The State should considered the litigation as an opportunity to introspect itself and if it finds any error in its action then to correct itself. This is an ideal conduct expected from a peoples’ Government. The defence taken by the respondents State and Panchayat Raj Institutions is wholly untenable because it is nobody's case that the empanelled candidates were not appointed. The case of the petitioners throughout has been that the select list prepared by the respondents is not in accordance with the terms of G.O.Ms No. 716, according to which all the candidates who have secured 40% of marks both in written test and oral test are required to be included in the panel. Therefore, obviously when the writ petitions were filed in this court, the names of the petitioners were not included in the panel. The interim order passed by this court on 12-11-1993 has a context, spirit and terms. The context was the grievance of the petitioners that they were not empanelled unjustly and wrongly by the authorities. In that context the interim order was issued directing the respondents authorities to appoint those petitioners who have secured qualifying marks. The respondents authorities shall not be permitted to misinterpret the word ‘empanelled’ occurring in the direction issued by my learned brother B. Subhashan Reddy, J. That word is required to be understood and interpreted in the context and background of the interim order. Therefore, it is quite obvious that the interim order issued by this court on 12-11-1993 remains disobeyed and in that view of the matter the respondents-authorities cannot be permitted to do something which will definitely violate the spirit and content of the interim order. At the same time the importance of the need of the respondents State and Panchayat Raj Institutions for Teachers in the schools run and managed by them to discharge constitutional obligations need not require any emphasis. In that view of the matter, the State and Panchayat Raj Institutions cannot be restrained from recruiting the teachers. At the same time the interim writ issued by this court on 12-11-1993 should be obeyed and respected by the State and Panchayat Raj Institutions. If the Court could possibly strike a balance between the competing claims of the State and Panchayat Raj Institutions on the one hand and the petitioners on the other hand and find a solution to the nalady, it should do so. The Court finds that such a solution is possible in the present case. When this matter was argued it was stated at the Bar that they are more than 20,000 vacancies in the posts of teachers. Before I conclude I am constrained to observe that the defence of the respondents Government and Panchayat Raj Institutions that the preparation of the select list and its currency are governed by G.O.Ms No. 231 dt. 31-3-1987, prima facie seems to be totally unjustified and untenable. Besides the judgment of the A.P.A.T dt. 22-8-1990 made in R.P Nos. 23505 to 23514 of 1989 and connected cases, the combined reading of G.O.Ms No. 429, dt. 13-10-1983 and G.O.Ms No. 716, dt. 13-11-1981 makes it clear that the preparation of the select list and its currency are governed by the provisions of G.O.Ms No. 716 but not by G.O.Ms No. 231 dt. 31-3-1987. Even in the event of the Apex Court reversing judgment of the Full Bench of this Court, it will only change the forum of adjudication and not the substantive service law applicable to the facts of this case. Technicalities have become bane of Indian litigations. Technicality is the unfailing resource of an Indian litigant. Parties should win or loose the case on substantial grounds, not technical tortures and this Court cannot aid or uphold the technical arguments to defeat the ends of justice. It is understandable a private body or a person raising technicalities to defeat the ends of justice but it is not understandable how could a welfare State responsible to the people raise such technicalities without looking into the substance of the matter. Man errs so also the public administration manned by men. Erring, it is said, is human, but refusal to introspect one's own action is not rational. At this juncture I can only trust and hope that the respondent Government and the panchayat Raj Institutions will look into the controversy afresh and take remedial measures to remove the long standing stalemate involving thousands of unemployed youth.
18. The petitions posted before the Court today for hearing and orders are inter-connected to each other. Therefore, taking into account all the attending facts and circumstances of the case and for the reasons stated supra, I make the following:
COMMON ORDER
(i) The respondents-State and Panchayat Raj Institutions are directed to prepare a select list of all those writ petitioners who have secured 40% of the marks in both written and oral tests strictly in accordance with Rule 13 of G.O.Ms No. 716, dt. 13-11-1981 and appoint all those writ petitioners who find a place in such select list as teachers subject to the same terms and conditions specified in the interim order of this Court dt. 12-11-1993 made in W.P.M.P No. 21607, 21608 and 21609 of 1993;
(ii) The respondents-State and Panchayat Raj Institutions are further directed not to make any direct recruitment for the posts of teachers unless and until they comply with the direction No. (i) issued supra;
(iii) When the respondent-State and Panchayat Raj Institutions comply with the direction No. (i) they will be free to make recruitment for the remaining posts of teachers;
(iv) It is made clear that if the respondents-State and Panchayat Raj Institutions deem it advisable and expedient to appoint the writ petitioners covered under direction No. (i) on regular basis and without imposing any condition as specified by this Court in its order dt. 12-11-1993 made in W.P.M.P Nos. 21607, 21608 and 21609 of 1993 in order to give a quietus to the longstanding dispute, they are free to do so and this order will not come in their way;
(v) W.P.M.P No. 17958/1994 is ordered in part in modification of the earlier order made on 17-8-1994 and in terms of directions (i) to (iv). W.V.M.P No. 917 of 1994 and W.V.M.P No. 678 of 1994 are rejected. W.P.M.P No. 13662 of 1994 is disposed off as having become unnecessary in view of this order. W.V.M.P No. 843 of 1994 is rejected.
(vi) No order as to costs.