Sulochana Devi Vs. D.M. Sujatha & Ors  Insc 605 (4 October 2004)
K.G. Balakrishnan & Dr. AR. Lakshmanan (Arising out of SLP (C) Nos. 2008-2009 of 2004) Dr. AR. Lakshmanan, J.
These two appeals are directed against the common judgment passed by the
High Court of Andhra Pradesh in Writ Appeal Nos. 2078-2079 of 2003 dated
23.12.2003. Writ Appeal 2078 of 2003 was filed by Smt. D.M.Sujatha, first
respondent herein, against the order in Writ Petition No.4279 of 2003 dated
20.11.2003. Writ Appeal No. 2079 of 2003 was filed by the first respondent
herein against the order in Writ Petition No.6362 of 2003 dated 20.11.2003.
Both the appeals were heard together by the Division Bench of the High Court
which ultimately allowed both the writ appeals filed by the first respondent
herein and dismissed another Writ Petition No.4279 of 2003 as infructuous.
For proper appreciation of the controversy involved in the matter, it is
necessary to state the few facts in brief :
The appellant-Smt. R. Sulochana Devi joined the Andhra Christian College as
Demonstrator in the Department of Chemistry on 1.8.1968. She was promoted as
Lecturer in an aided post on 1.8.1969 and her promotion was confirmed from the
date of appointment, i.e., with effect from 1.8.1969. She was given the benefit
of Career Advancement Scheme of 16 years and 21 years. She was also appointed
as Vice Principal and Associate Principal and also admitted to grant in aid.
The respondent- College appointed respondent No.1, Smt. D.M. Sujatha, as
Lecturer in English w.e.f.
30.8.1969 and the Board of Education of the respondent-College approved the
promotion of the appellant as Lecturer as also the appointment of respondent
No.1 as Lecturer from the respective dates of their appointment. On 1.5.1972,
Sujatha, respondent No.1, was reverted to the post of Junior Lecturer and
worked in the same post for about four years up to 31.8.1974. She was again
re-designated as a Lecturer in English only on 1.7.1976. By proceedings dated
11.12.1975, the Director of Higher Education directed the Director that
respondent No.1 be treated as Lecturer w.e.f. 30.8.1969 by extending general
protection. The Director of Higher Education by the proceedings dated
11.12.1975 issued directions for the purpose of giving general protection to
Lecturers/Junior Lecturers working in various institutions to be treated as
Lecturers for the purpose of service and seniority from their respective dates
of appointment as Lecturer/Junior Lecturer, if they are appointed in the grant-in-aid
post prior to 1.5.1971. In the seniority, the appellant was placed at S.No.20
and respondent No.1 was placed at S.No.23. The appellant was promoted as
Vice-Principal of the College by proceedings of the Manager of the Management.
One, Mr. P. Andrew was appointed as a Lecturer on 28.6.1969. The Management
wanted to favour Mr. Andrew by appointing him as a Principal by superseding the
appellant herein and in order to achieve this object, the Management of the
College had approached the then Regional Joint Director (for short "the
RJD") with a query to decide the inter se seniority between Mr. P.Andrew
and the appellant- Smt. Sulochana Devi. According to the appellant, all this
was behind the back of her.
The RJD, without following the principles of natural justice had given an
opinion by saying that Mr. P. Andrew is senior to the appellant and that the
amount to be paid to the appellant as salary in excess should be recovered. The
opinion was also given on the basis that in the audit report, the appellant's
promotion was not recorded and was not approved by the Department of Higher
Education as per the audit report and she was only admitted as Junior
Lecturer/Demonstrator in the Audit Report for the years 1973-1976 and that she
was allowed only one increment treating her as Demonstrator.
According to the appellant, it was a pre-determined order passed by the RJD.
The Management of the College had resolved to promote Mr. P. Andrew as
Principal pursuant to the opinion rendered by the RJD for Collegiate Education
when he is senior to the appellant and Mr. P. Andrew was promoted as Principal
by a Resolution of the Management Committee dated 1.2.2001. Aggrieved by the
decision taken by the Management for promoting Mr. P. Andrew as Principal by
ignoring the seniority of the appellant, the appellant filed a writ petition
challenging the orders passed by the respondent-College Management by way of
Writ Petition 1031 of 2001. The appellant also gave a representation to the
Commissioner of Collegiate Education that the RJD had given a wrong opinion
behind her back to the Management and the Management was persuaded to appoint
Mr. P. Andrew who is junior to the appellant as Principal.
The appellant urged the Commissioner of Collegiate Education to get the same
rectified by her representation dated 1.6.2001. On 30.1.2001, the appellant
assailed the Resolution of the Management to promote Mr. P. Andrew as Principal
by way of filing a suit before the Junior Civil Judge, Guntur. The appellant
also made another representation to the Commissioner of Collegiate Education
about the discrimination meted to her and also the error committed in the audit
report from 1973-1976. In view of some changed circumstances, the appellant
withdrew the suit filed by her as not pressed on 23.11.2001. The appellant also
withdrew Writ Petition No. 1031 of 2001 with an intention to approach the
competent authority under the Andhra Pradesh Education Act, 1982 (hereinafter
referred to as "the Act"). As no decision was forthcoming from the
Commissioner of Collegiate Education, the appellant made another representation
to the said authority and also the RJD of the Collegiate Education. On the same
date, a similar representation was made to the Director of Collegiate
Education. The appellant also filed the Service Registers and audit report
before the concerned authorities to show that ever since her appointment, she
was treated as a Lecturer for all purposes.
The RJD of Collegiate Education considered the case of the appellant and
gave a clarification that the appellant must be deemed as a Lecturer with
effect from 1.8.1969 under the general protection in view of the proceedings
bearing RC No. 4209/K II.3/5 dated 11.12.1975. Copy of the order passed by the
RJD of Collegiate Education dated 15.4.2002 is annexed as Annexure P-8. The
last paragraph of the order reads thus:
"In view of the circumstances stated in the reference (4) read above
and in modification of the orders issued in the reference first read above,
Smt. R. Sulochana Devi, Lecturer in Chemistry, A.C. College, Guntur is treated
as Lecturer w.e.f. 01.08.1969, i.e., from the date of promotion under general
protection in view of the proceedings RC No.4209/KII.3/5, dated 11.12.1975 of
the Director of Higher Education, Andhra Pradesh, Hyderabad." Respondent
No.1, Smt. D.M. Sujatha, made a representation to the RJD stating that she had
been ignored despite the fact that she was senior to the appellant and,
therefore, she ought to have been promoted as Principal. Copy of the
representation given by respondent No.1 is annexed as Annexure P-9. The RJD, by
the proceedings dated 3.2.2003, passed an order saying that the appellant
cannot be made the Principal because she had relinquished her right to become
Principal since she did not act upon the order passed by the RJD dated
15.4.2002 by virtue of which she was Lecturer w.e.f. 1.8.1969 and, therefore,
she has no right to claim seniority for the post of Principal at this juncture
after the retirement of Mr. P. Andrew. Aggrieved by the order passed by the
RJD, the appellant filed Writ Petition No. 4279 of 2003. The High Court granted
interim suspension of the order dated 3.2.2003 issued by the RJD of Collegiate
Education in an interlocutory application. The appellant, in the meantime, made
a representation to the Government by stating all the facts and bringing it to
the notice of the Government with regard to the mischief played by the
Management and the RJD collectively in order to do a favour to Mr. P. Andrew.
The Government issued an order in favour of the appellant herein by G.O.RT. No.
308 dated 22.4.2003. The relevant portion of the G.O.RT.No.308 reads thus:
"The matter has been examined in the light of the orders of the A.P.
High Court, 2nd read above, keeping in view the appeal petition filed by Smt.
R. Sulochana Devi, Lecturer 3rd above, and it is observed that Smt. R.
Sulochana Devi was treated as Lecturer in A.C. College with effect from
1.8.1969. though she has not challenged the promotion of her junior, Sri P.
Andrew as Principal, the fact remains that she was not offered the post of
Principal of A.C. College and, therefore, the question of her relinquishment to
the post of Principal does not arise and that she is senior to Smt. D.M.
Sujatha, Lecturer." After a lapse of more than one year, respondent No.1
had also filed Writ Petition No.6362 of 2002 assailing the orders passed by the
RJD dated 15.4.2002 bearing proceedings LDS No. 758/B2/2002 wherein the
appellant was treated as a Lecturer w.e.f. 1.8.1969, i.e., from the date of her
promotion as Lecturer from that of Demonstrator under the general protection as
per proceedings dated 11.12.1975 of the Director of Higher Education modifying
the order passed on 15.3.2000. The first respondent also filed another Writ
Petition No.7723 of 2003 assailing the order passed by the Government in
G.O.Ms. No.308 dated 22.4.2003 wherein the appellant was declared as senior to
the first respondent.
All the three writ petitions were heard together by the learned single Judge
of the High Court. By a common judgment dated 20.11.2003, the learned single
Judge allowed the writ petition bearing No. 4279 of 2003 filed by the appellant
herein and dismissed the writ petitions filed by the first respondent herein.
In the concluding part of the judgment, the learned single Judge observed as
"I am constrained to observe that the management of the College is
behind this litigation since the opinion rendered by the 3rd respondent on
15.2.2000 was at its instance and the same was reversed on 15.4.2002 pursuant
to the representation of the appellant and that is the reason why the 5th
respondent filed the Writ Petition after more than an year against the said
order dated 15.4.2002 of the 3rd respondent passed in favour of the petitioner.
Furthermore, the 5th respondent has not challenged the promotion of the
petitioner as Vice- Principal on 13.01.2002 and subsequently as Associate
Principal on 10.1.2003." Aggrieved by the above judgment, the first
respondent herein filed writ appeals.
However, the first respondent has not challenged the order passed in Writ
Petition No.7723 of 2002 in which she had sought a mandamus to declare G.O.Ms.
No.308 dated 22.4.2003 as illegal.
By a common judgment and order dated 23.12.2003, the Division Bench of the
High Court allowed the said writ appeals. Being aggrieved by the said order,
the appellant has preferred the above appeals by way of special leave
We heard Mr. T.L.V. Iyer, learned senior counsel appearing for the appellant
and Mr. P.P. Rao, learned senior counsel, Ms. D. Bharathi Reddy and Mr. John
Mathew, learned counsel for the respondents.
We have been taken though the entire pleadings, annexures filed along with
the special leave petition and the additional documents filed by the parties
with the permission of the Court.
Mr. T.L.V. Iyer, learned senior counsel, appearing for the appellant made
the following submissions:
According to Mr. T.L.V. Iyer, the opinion rendered by the RJD dated
15.2.2000 is not under any of the provisions of the Act and that the Division
Bench is wrong in construing that such an opinion is an order passed under the
provisions of the Act. It was further submitted that the Division Bench is not
right in interfering with the discretionary power that is vested with the
Management to choose a Head of the Institution/Principal and, therefore, such
interference is impermissible in law. This apart, the opinion dated 15.2.2000
rendered by the competent authority was given behind the back of the appellant
herein without there being any notice. He further contended that the Division
Bench is not right in giving so much sanctity for the opinion dated 15.2.2000
when it is vitiated for non-adherence of the principles of natural justice and
that such an order is a nullity in the eye of law and a void one being non est
It was further contended that the Division Bench is not correct in
considering only the audit reports to hold that the appellant is a Lecturer
only w.e.f. 1.4.1976 when there is ample evidence produced by the appellant to
show that she is a Lecturer w.e.f.
1.8.1969. It was also contended that the first respondent herein had not
chosen to challenge the order passed in Writ Petition No. 7723 of 2003 and that
the Division Bench is not right in not taking this aspect of the matter into consideration
to understand the conduct of the first respondent. He would further submit that
the proposition propounded by the Division Bench that a quasi-judicial
authority cannot review its own order unless the power to review is expressly
conferred on it by the Statute can not be applied to the facts of the present
case. It was further contended that the Division Bench has failed to take into
consideration that the opinion of the RJD dated 15.2.2000 is non est in law
since no notice had been given to the parties before passing such an order and,
therefore, the subsequent order that was passed by the RJD dated 15.4.2002,
after considering all the relevant documents, was the first order and cannot be
termed as review at all. It was further contended that the Division Bench could
not appreciate the fact that the Government of Andhra Pradesh had categorically
stated in its counter that the appellant is a Lecturer with effect from the
date of her promotion, i.e., from 1.8.1969 and, therefore, she is senior to the
first respondent herein. This apart, the first respondent has not raised any
grievance or dispute at any stage at all except in the year 2003 regarding her
seniority above the appellant herein.
Even when the order was passed by the RJD dated 15.4.2002, the first
respondent did not raise even a little finger within time. It was then
submitted that the appellant, at no point of time, has expressly or even
impliedly relinquished her right to the post of Principal as per the seniority
and she made several representations and also filed a suit and the writ
petition complaining about the discrimination meted to her. However, the same
were withdrawn since the appellant thought it would be appropriate to go
through proper channel, that is, to approach the competent authority under the
Act. It was also a matter of record that the appellant made several
representations as can be seen from the record itself. Representations dated
1.6.2001, 22.10.2001, 10.12.2002, 10.1.2003, 5.2.2003, 10.2.2003 etc. were all
in respect of the injustice that has been caused to her.
Mr. T.L.V. Iyer further submitted that the Division Bench should have seen
the Resolutions of the Management, minutes of the Management, proceedings of
the competent authorities, the service registers, the seniority registers, the
pay scale details etc. Each go to show that the appellant was never
contemplated to be deemed to be a Demonstrator and not a Lecturer and that the
minutes of the Management, in unambiguous terms, show that the appellant was
appointed as Demonstrator on 1.8.1969 continued as Demonstrator up to 31.7.1969
and, thereafter from 1.8.1969, she was promoted to the post of Lecturer that
too in aided post. In fact, there is any amount of evidence produced by the
appellant to show that she is Lecturer from 1.8.1969 whereas the Division Bench
is wrong in considering only audit reports to hold that she is a Lecturer only
w.e.f. 1.4.1976 which is a very hyper technical view taken by the Division
Bench. Concluding his submissions, learned senior counsel submitted that the
Division Bench has failed to see that the RJD gave the opinion dated 15.12.2000
without any authority under the provisions of the Act and in such an event, the
opinion dated 15.12.2000 is not a valid order in the eye of law apart from
being vitiated for non-adherence to the principles of natural justice.
Therefore, such an opinion dated 15.12.2000 cannot be construed to be a valid
order under the provisions of the Act and, therefore, such an opinion cannot
even be challenged by way of an appeal before the Government for all practical
Mr. P.P.Rao, learned counsel appearing for the contesting respondent,
1. the appellant's promotion as Lecturer in chemistry w.e.f. 01.08.1969 was
not approved by the departmental authorities and it was not in consonance with
the rules and her pay as Lecturer was disallowed for the years 1972-73,
1973-74, 1974-75 and 1975-76 and hence the appellant cannot reckon her
seniority from 01.08.1969.
2. The appellant though questioned the proceedings dated 15.02.2000 in writ
petition No. 1031 of 2001 and withdrew the same and also filed the suit
claiming seniority and withdrew the same on 13.03.2000 without seeking liberty
to agitate the same. The appellant having not filed any appeal against the
proceedings dated 15.02.2000, the same had become final and the respondent
authority has no power under the provisions of the A.P. Education Act to review
the said proceeding;
3. It was further argued that the appellant was designated as a Lecturer
w.e.f. 01.04.1976 consequent on the merger of the posts in terms of
instructions contained in G.O.Ms. No.1072 dated 26.11.1976 and G.O.Ms. No. 748
dated 30.08.1982. It was further contended that the appellant is not entitled
to the general protection contained in the proceedings of the Director of
Higher Education dated 11.12.1975.
having regard to the fact that the appellant is not a teacher and is not an
Assistant Lecturer entitled to the benefit of the proceedings of the Director
of Higher Education dated 11.12.1975.
4. He would further submit that by the proceedings dated 15.04.2002, the
appellant is given seniority over the first respondent herein and in that view
of the matter the first-respondent herein is entitled to notice assuming
without admitting that the RJD had the power to review his order.
5. It is also submitted that the appellant was granted career advancement
scheme erroneously counting her service from 01.08.1969 which was disallowed by
6. The RJD by his proceedings dated 15.02.2000 has assigned the date on
01.04.1976 to the appellant as a date from which she is eligible to be treated
as Lecturer taking into account service registers, audit report and other
materials which establish that the appellant did not draw the scale of pay
payable to the post of a Lecturer even though she was allegedly promoted as
7. No notice was issued to the first respondent herein before passing of the
impugned proceedings dated 15.04.2002 as the said proceedings adversely affects
the rights, interests and legitimate expectations of the first respondent. The
said proceedings were passed in post-haste by RJD with an intention of
conferring undue favour on the appellant and unduly affecting the right of the
first respondent herein and others and that the mode and manner in which the
proceedings were passed lack of arbitrariness and unfairness;
8. The order dated 15.02.2000 was appealable under Section 89 of the A.P.
Education Act, 1982 and that the appellant did not prefer any appeal against
the said order and, therefore, the order dated 15.02.2000 became final and
conclusive so far as the seniority of the appointment in the post of Lecturer
is concerned. The RJD being a quasi judicial authority could not review its
orders since power of review is conferred only on the Government and a quasi
judicial authority cannot review its order unless the power of review is
expressly conferred on it by the statute under which it derives jurisdiction.
Therefore, the order dated 15.04.2002 of the RJD which amounted to a review of
the order dated 15.02.2000 is, therefore, without jurisdiction and cannot be
sustained. This apart the said order was an adjudication by the RJD and not a
mere opinion as to the seniority of the appellant and the same holds good so
long as it is not varied or altered in accordance with law;
9. The Management of the college having entertained a doubt regarding
seniority of the appellant itself sought determination of the RJD in this
regard and it is, therefore, not open to the college to contend that the
decision of the RJD is not binding. Commenting on the entry in the service
book, Mr. P.P. Rao contended that the appellant is seeking seniority over the
respondent No.1 on the basis of an alleged entry in her service book by the Management
that she was promoted as Lecturer on 01.08.1969 and that the said entry on the
face of it is fabricated as would be evident from various factors. Furthermore,
as per established practice when the entry is made in the service book it has
to be preceded by proceedings of the approving authority i.e.
Director of Higher Education. However, the aforesaid entry in the service
book of the appellant does not contain any proceedings number of the approving
authority. Therefore, it is evident that the Management has manipulated the
improper entry in the service book of the appellant in collusion with the
appellant. Concluding his argument Mr. Rao submitted that the impugned judgment
of the Division Bench is well-considered and well-reasoned judgment and that
the present appeal is devoid of any merit and liable to be rejected.
Learned counsel appearing for the College invited our attention to the
counter affidavit filed by the College in this matter. It is useful to
reproduce para 5 of the counter affidavit filed by the Management which reads
"It is respectfully submitted that even if seniority is taken into
consideration, the Petitioner herein is senior to the 1st Respondent. The
College has appointed the petitioner herein on 1.8.1968 as Demonstrator (aided)
in the Department of Chemistry. On 1.8.1969 i.e. one year later the Petitioner
was promoted as Lecturer in an aided post w.e.f. 1.8.1969. The 1st Respondent
herein was appointed as Lecturer in English from 30.08.1969. There is a clear
gap of one month between the appointment of the Petitioner and the 1st
Respondent herein. It is respectfully submitted that the 1st Respondent was
reverted to the post of Jr. Lecturer from 1.5.70 up to 31.8.1974.
Therefore, by no stretch of imagination the 1st Respondent can be junior to
the petitioner herein. It is pertinent to mention herein that the petitioner
had never suffered any reversion. Moreover, the Petitioner herein was given the
benefit of career advancement scheme of 16 years and 21 years. It is respectfully
submitted that because it was always felt that the Petitioner herein should be
the successor to Shri P. Andrew, at the time when Shri P.
Andrew was given the Principalship the Petitioner was appointed as the Vice
Principal and this decision was taken by the management of the institution
consciously as the management thought that in terms of seniority as also the
capability and efficiency, the Petitioner herein is a better candidate. Since
13.01.2000, the petitioner herein was discharging duties as Vice-Principal of
the college and proceedings to this effect have also been issued by the manager
of the Andhra Evangelical Luthern Chruch, Guntur." The learned counsel for
the Government of Andhra Pradesh drew our attention to the counter affidavit
filed on behalf of the State in the writ petition.
"The 6th respondent was appointed as demonstrator in Chemistry on
1-8-1968 in the 5th respondent college. Later, she was appointed as lecturer in
the department of Chemistry with effect from 1-8-1969 by the principal,
A.C.College Guntur vide orders dt. 1-8-1969. The Board of education of college
of the education approved the appointment of the 6th respondent at its meeting
on 17-4-1970 vide their minutes No.
155/22. The director of collegiate education Andhra Pradesh, Hyderabad has
also submitted the 6th respondent into grant-in-aid in the audit report of the
2nd respondent for the years 1969-70 (i.e. the year of her appointment) 1970-71
and 1971-72. The 6th respondent has sufficient work load i.e. 18 hours per week,
on par with the other senior lecturers for the academic years 1969-70; 1970-71;
1973-74; 1974-75 and 1975-76. By counting the service w.e.f. 1-8- 1969; the
6th respondent was awarded selection grade scale under career advancement
scheme with effect from 1-1-1986 by virtue of completing more than 16 years of
service which is the pre-requisite condition in the A.P. revised scale (UGC)
1986. It is also submitted that the then special officer of A.C. College,
Guntur who was also the then regional joint Director of Collegiate education,
Guntur has recorded the grant-in-aid certificate in the service book of the 6th
respondent to the effect that the incumbent has been working as Lecturer in the
grant-in-aid post with effect from 1-8-1969. On the same analogy adopted in
respect of the petitioner; the 6th respondent was entitled to the general
protection as per the orders of the 2nd respondent vide Rc No. 4209/K.II.3/5,
dt. 11-12-1975. Since, the 6th respondent was appointed and worked in the
grant-in-aid post of Lecturer prior to 1-5-1971; the post of Lecturer of 6th
respondent was protected as per general protection and she was treated as
Lecturer w.e.f. 1-8-1969 vide 3rd respondent orders No.L.Dis.No. 758/B2/2002,
The 6th respondent was never reverted to a lower post and she was a Lecturer
since 1-8-1969. On par with the petitioner, the 6th respondent was also brought
under general protection by the 3rd respondent vide L.Dis.No.758/B2/2002, and
treated as lecture w.e.f. 1- 8-1969 as such, the 6th respondent became senior
to the petitioner." We have given our thoughtful consideration to the
arguments advanced by the learned counsel appearing on either side with
reference to the annexures and other relevant records and also the judgments of
the learned single Judge and of the Division Bench.
It is not in dispute that the appellant was offered the post of Lecturer
w.e.f 01.08.1969 and she accepted the same. The minutes of the Management of
the respondent-College dated 06.03.1976 shows that the appellant entered into
service as a Lecturer w.e.f. 01.08.1969 which was voted to confirm as of
01.01.1976. In the very same minutes, it was shown that the first-respondent
herein entered into service as junior Lecturer w.e.f. 30.08.1969. Further, the seniority
list of the college, the name of the appellant was shown at sl. No. 20 and it
was stated that she had been working as a Lecturer in Chemistry having been
joined on 01.08.1969 and prior to that, she worked as Demonstrator from
01.08.1968 to 31.07.1969. Whereas, the first respondent was shown at sl. No. 23
and stated that she had been working as a Lecturer in English w.e.f.
30.08.1969. This apart, the extract of the service book of the appellant shows
that she was promoted as Lecturer w.e.f. 01.08.1969 and prior to that she
worked as a Demonstrator. Further, the service book shows that the post in
which the appellant was working was admitted to grant-in-aid w.e.f. 01.08.1969.
It was also stated in the service book that the appellant was extended with the
benefit CAS after completion of 16 years of service vide proceedings of the RJD
dated 31.01.1996 and accordingly her pay was regulated in the post of Lecturer.
It is also seen that 20 years of CAS benefit was also extended by the RJD
through his Proceedings dated 14.09.1999 and the increments, salary etc. were
regulated as such. Further, the President and the Manager of the College had
issued proceedings dated 12.01.2000 appointing the appellant as Vice- Principal
of the College w.e.f. 12.01.2000. At no point of time, there was any break in
the service of the appellant as a Lecturer right from 01.08.1969 though there
was a break in the service of the first respondent herein. As already noticed,
the appellant had also challenged the proceedings of the respondents and filed
writ petition questioning the appointment of Mr. Andrew and withdrew the same
in view of the subsequent changed circumstances.
We have perused the proceedings dated 15.02.2000 by the RJD. It was an
opinion rendered at the instance of the Correspondent of the College. Thus, it
was purely an opinion rather than an administrative order and when the
appellant made a representation, the same was reconsidered and a proper opinion
was rendered on 15.04.2002. Thus, in our opinion, it does not amount to review.
Further they are not quasi judicial orders passed in exercise of any statutory
power and it does not oust the jurisdiction of the RJD to reconsider it and
pass revised order. Therefore, the submission of Mr. P.P.Rao that this Court
has to consider whether the RJD has power to review its own order and whether
such a power is conferred on such authority has no merits and cannot be
accepted. In this connection, we are in full agreement with the arguments
advanced by Mr. T.L.V. Iyer on behalf of the appellant.
Much arguments were advanced by Mr. P.P.Rao that because of the audit
objection the appellant was not paid the salary of the Lecturer. This
contention has no merit. Admittedly, the appellant was appointed as
Demonstrator w.e.f. 01.08.1969 and she had drawn her salary as a Lecturer from
01.08.1969 in an aided vacancy. It was submitted that though there was some
audit objection, but no recoveries were made against the appellant and she
continued as Lecturer althrough.
The argument of Mr. P.P. Rao, learned senior counsel for the first
respondent that while issuing the modified order dated 15.04.2002 the RJD has
not issued any notice to the first respondent, cannot be accepted, since the
first respondent was nowhere in the picture at that time. In fact, the dispute
as to seniority at that time was inter se the appellant and one Andrew and the
first respondent did not raise any dispute. The first respondent did not bother
as to the claim of the appellant that she is senior to Mr. Andrew. If she was
really concerned, she could have joined the issue and worked out her remedies.
The fact remains that the first respondent did not raise any objection
immediately after the order was passed on 15.04.2002 declaring the seniority of
the appellant in the post of Lecturer and that it should be reckoned from
She filed writ petition only after about an year of issuance of the said
order dated 15.04.2002. Further, issuing of any notice to the first respondent
in the proceedings in G.O.Rt. No. 308 dated 22.04.2003 also does not arise.
Since the said G.O. has not altered anybody's seniority. The said G.O. was
issued, in fact, in pursuance of a representation of the appellant dated
13.03.2003. The first respondent, in our opinion, was not entitled for any
relief, since her right as such either under the Proceedings dated 15.02.2000
or the Order dated 15.04.2002 of the RJD was affected. Under these
circumstances, there was no necessity for the Government to issue any notice to
the first respondent while issuing the said G.O. It is true that there was some
audit objection but the fact remains no recoveries were made against the
appellant treating her only as demonstrator and that would in our opinion
categorically indicate that the appellant was althrough was a Lecturer in the
aided vacancy right from 01.08.1969 as such she was senior to Mr. Andrew and
was deprived of her right being promoted to the post of Principal on 31.01.2001
and again when the first respondent was made in charge Principal of the College
w.e.f. 01.05.2003 on retirement of Mr. Andrew. Thus, it is seen that the
appellant has suffered humiliation in view of the wrong decision taken by the
RJD earlier on 15.03.2000 which was later modified by an order dated
As rightly pointed out by Mr. T.L.V. Iyer that the opinion of the RJD dated
15.02.2000 is an opinion which is non est in law since no notice has been given
to parties before passing such an order and, therefore, the subsequent order
that was passed by the RJD dated 15.04.2002 after considering all the relevant
Iyer is also right in contending that the order dated 15.02.2000 is a
nullity and, therefore, it can be ignored by the appellant and the question of
filing a review by the appellant does not arise. When the order passed by an
authority is not in accordance with law and no notice was communicated to the
party it is a nullity and need not be challenged in a Court of law.
We see merit in the submission of Mr. Iyer that an order made in violation
of natural justice is void. Mr. T.L.V. Iyer in support of his above contention
relied on the judgment of this Court in Krishan Lal vs. State of J & K
(1994) 4 SCC 422 to the effect that an order passed in violation of the
principles of natural justice renders an order invalid. Likewise, an order made
without hearing the party affected is also bad in law.
In the instant case, the order made in violation of natural justice is void.
At the time of hearing, a dispute was raised by Mr. P.P. Rao that the
appellant Sulochana Devi was not appointed as an Associate-Principal. Mr.
T.L.V. Iyer, in support of his contention, that the appellant was appointed as
Associate-Principal has placed before us the extract from the minutes of the
meeting of the executive council of Andhra Evangelical Lutheran Church dated
10.01.2003 which reads thus:
"COMMITTEE ON ASSIGNMENTS:
A.C. College matters:
Reported that the Board of College education send the panel of Two names
Mrs. R. Sulochana Devi and Mrs. D.M. Sujatha for the appointment of Associate
Principal for A.C.College, Guntur as Dr.
P.Andrew, Principal, A.C.College is going to be retired on 30-4-2003 on
Recommended that Mrs. R. Sulochana Devi be appointed as Associate Principal
with immediate effect according to the verification of their service registers.
Further Mrs. R. Sulochana Devi and Mrs. D.M.
Sujatha are hereby requested to submit all the relevant papers along with
service registers to claim their seniority and also to seek clarification from
the Commissioner for Higher Education, Andhra Pradesh, Hyderabad in connection
with the appointment to the post of Principal, A.C. College.
VOTED to approve the above recommendation of the Committee on
Assignments." In our view, the Division Bench ought not to have interfered
with the discretionary power that is vested with the Management to chose the
principal of its choice. It is settled by a catena of decisions of this Court
that Courts shall be loathe in interfering with the choice of the Management in
the selection of the Principal candidate with reference to the educational
institutions under the Management of the minority institutions. As rightly
contended by Mr. T.L.V. Iyer, the learned Judges of the Division Bench is not
correct in giving so much sanctity for the opinion dated 15.02.2000 of RJD
where it is a violation for non-adherence to the principles of natural justice.
As already noticed, there is abundant material and evidence produced by the
appellant to show that she is a Lecturer w.e.f. 01.08.1969 and the Division
Bench is wrong in considering only audit reports to hold that she is a Lecturer
only w.e.f. 01.04.1976. The Division Bench could have avoided in taking such a
The appellant had been deprived of her legal entitlement as the Principal of
the College by the Management at the first instance in order to favour Mr. P.
Andrew and accommodate him. Now, even after Mr. P. Andrew's retirement, the
appellant was Principal for only a short time basing on the single Judge's
judgment. However, by virtue of the order passed by the Division Bench, the
Management of the College had appointed the first respondent as Principal. In
our opinion, the order passed by the Division Bench is not correct and is,
therefore, liable to be set aside and accordingly we do so and restore the
order passed by the learned single Judge.
We were told that the appellant herein has left only about one and a half
years of service before her superannuation whereas the first respondent will
have some months thereafter after the appellant's superannuation. We,
therefore, hold that the first respondent is not entitled to hold the post of
Principal in view of our present judgment. The appellant admittedly being
senior to the first respondent is entitled to hold the post of Principal of the
College in question till her date of retirement. We, therefore, direct the
respondents herein, namely, the Government of Andhra Pradesh, the Commissioner
of Collegiate Education, Andhra Pradesh, Hyderabad, the Regional Joint Director
of Collegiate Education, Guntur and the Management of the College, namely,
Andhra Christian College represented by its Correspondent to immediately place
her as the Principal of the Andhra Christian College with immediate effect and
at any rate not later than two weeks from today. Since she is deprived of her
lawful claim to be the Principal of the College at the behest of the first
respondent herein D.M.
Sujatha, we direct her to pay the cost of Rs.5,000/- to the appellant herein
within two weeks from today failing which the Andhra Christian College
Management shall pay the said amount to the appellant and adjust the same from
the future salary payable to the first respondent - D.M. Sujatha.
For the foregoing reasons, the appeal is thus disposed of.