HON’BLE THE CHIEF JUSTICE SRI G.S. SINGHVI AND HON’BLE SRI JUSTICE G. V. SEETHAPATHY Writ Appeal No.1578 of 2005 & batch Between: The Government of A.P., rep. by its Secretary, School Education and others … Appellants And Sri Sevadas Vidyamandir High School … Respondents ::JUDGMENT:: Counsel for the appellants: Sri C.V. Mohan Reddy, Advocate General, assisted by Government Pleader for School Education (in all the appeals Counsel for respondent: Shri Rajkumar Rudra Counsel for respondents in other appeals: Sarvasri M.V.S. Suresh Kumar, Movva Chandra Sekhara Rao, Kasa Jagan Mohan Reddy, D.V. Sitarama Murthy, K.V.N. Bhupal, A.Venkata Ramana, Ch.Samson Babu, Ms.K.N. Vijaya Lakshmi, N. Subbarao, G. Tuhin Kumar, Smt.K. Sesha Rajyam, M. Prabhakar Rao, S. Girmoji Rao, T.V.S. Kumar, Smt.S.A.V. Ratnam, K. Chidambaram, Smt.Y. Padmavathi, M. Subba Reddy, P. Roy Reddy, K. Amarender Raju, T. Srikanth Reddy, Patlolla Venkata Reddy, G. Vivekanand, K. Ravinder Goud, D. Linga Rao, Dr.Y. Padmavathi. Writ Petition No.21793 of 2005 & batch Between: The management of Adivasi Aided Elementary School Adinarayanapuram, Prakasam District. … Petitioner And The State of Andhra Pradesh Rep. by its Secretary for School Education and others … Respondents Counsel for the petitioner: Ms. K.N.Vijayalakshmi Counsel for the petitioners in other connected cases: Sarvasri G. Vidyasagar, M.V.S.Suresh Kumar, S. Niranjan Reddy, K.V.N. Bhupal, Aka Venkataramana, V. Mallik, A. Rama Rao Counsel for respondents: Shri C.V. Mohan Reddy, Advocate General, assisted by Government Pleader for School Education December 29, 2006 Per G.S. Singhvi, CJ By this judgment, we are disposing of the above noted appeal along with Writ Appeal Nos. 1579, 1585, 1643, 1672, 1681, 1726, 1746, 1759, 1932, 1941, 1942, 1943, 1944, 1979, 1987, 1992, 1993, 2006, 2022, 2034, 2069, 2155, 2165, 2166, 2167, 2180, 2185, 2186, 2187, 2249, 2274, 2285, 2289, 2319, and 2383 of 2005, 104, 148, 309 and 739 of 2006, Writ Appeal Nos. 1381, 1382, 1383, 1384, 1385, 1386, 1387, 1388, 1389, 1390, 1391, 1392, 1393, 1394, 1395, 1396, 1397, 1398, 1399, 1400 of 2006 and Writ Petition Nos.21793, 21794, 24718, 24983, 25215, 25481, 25482, 25522, 25524, 25527, 25583, 26323, 26328 of 2005 and 3330, 3450, 3451, 3531, 3550, 3575, 3587, 3594, 3599, 3643, 3660, 3821, 3822, 3823, 3837, 4240, 4241, 7031, 7068, 7069, 7070, 7120 of 2006. The writ appeals have been preferred by the Government of Andhra Pradesh and its officers against the orders passed by the learned Single Judges whereby they declared that the ban imposed by the State Government vide Memo No.1280/ COSE/A2/2004-4 dated 20-10-2004 on the filling up of existing vacancies in the cadre of teachers is not applicable to the recruitment process already initiated by the management of the private schools for filling up the vacant aided posts of teachers and directed the non-petitioners (appellants herein) to allow the writ petitioners (respondents in the writ appeals) to complete the process of selection. In some of the writ petitions filed by the management of the private schools, prayer has been made for issue of a direction to the respondents to allow them to complete the process of recruitment initiated prior to 20-10-2004 and to strike down the process of rationalization undertaken by the authorities of the Education Department pursuant to interim order dated 31-10-2005 passed in Writ Appeal No.1578 of 2005. It has been further prayed that the respondents be restrained from transferring the teachers from one school to the other by declaring them surplus and they be directed to release the amount of salary payable to the teachers appointed against the aided posts. In some other writ petitions filed by the selected candidates, prayer has been made for issue of directions to the official respondents to enable the management of the private schools to appoint them against the existing vacancies in the cadre of teachers. For the sake of convenience, we have noted the facts from the paper book of W.A. (SR) No.121938 of 2005 filed by the Government of Andhra Pradesh and others against order dated 9-3-2005 passed by the learned Single Judge in Writ Petition No.22804 of 2004 - C.A.M. High School, Nellore v. Government of Andhra Pradesh and others because, in furtherance of leave granted by the Division Bench on 7-3-2006, amended writ petition has been filed in that case and prayer has been made for quashing Memo dated 20-10-2004 and Rc.No.140/B2-1/2005 dated 3-11-2005 issued by the Director of School Education, Andhra Pradesh, Hyderabad (hereinafter referred to as ‘the Director’). Respondent – C.A.M. High School, Nellore is a private aided school established by Samavesam of Telugu Baptist Churches. All the posts of teachers sanctioned for the school are aided posts. In 2004, the management of the school approached District Educational Officer, Nellore for grant of permission to fill up the existing vacant posts. Deputy Educational Officer, Nellore vide his proceedings in Rc.No.178/2004 dated 16-8-2004 submitted report to District Educational Officer, Nellore giving details of the total strength of students and vacancy position in the cadre of teachers. District Educational Officer, Nellore sent letter dated 17-9-2004 to Regional Joint Director of School Education, Guntur (for short, ‘the Regional Joint Director’) recommending grant of sanction to the management of the school to fill up the vacant aided posts. The latter issued proceedings dated 22-9-2004 whereby he granted permission for filling up eight vacant posts of teachers. For the sake of reference, that letter is reproduced below: PROCEEDINGS OF THE REGIONAL JOINT DIRECTOR OF SCHOOL EDUCATION :: GUNTUR PRESENT: SRI C.A.V. PRASAD, M.A. M.Ed. Rc.No.4286/A5/2004-1 Date: 22-09-2004 Sub: Education – Secondary Education – Aided – C.A.M. High School, Nellore – Permission to fill up the vacant aided posts – Accorded. Read: 1) DEO, Nellore Lr.R.No.2366/B6/2004, Dt.17.09.2004, 2) G.O.Ms.No.1, Education (PS-II) Dept., dt.1.1.1994. 3) G.O.Ms.No.41, WD & CW (Estt.) Dept. dt.1.8.1996. 4) G.O.Ms.No.100, Edn. (PS-I) Dept., Dt.16-8-2001 5) G.O.Ms.No.75, SE (PS-II) Dept., dt.23-9-2002 communicated in C & DSE’s Procs., Rc.No.1000/B1-3/ 02, dt.24-9-2002. 6) G.O.Ms.No.91, SE (PS-II) Dept., dt.12.11.2002 7) G.O.Ms.No.8, SE (PS-II) Dept. dt.30-1-2003 communicated in C & DSE’s Proc.Rc.No.1000/B1-3/02, dt.7-2-2003. 8) Procs.Rc.No.1000/B1-3/02, dt.30.5.2003 of the C & DSE, AP, Hyd. *** In the circumstances explained by the Dist. Educational Officer, Nellore and recommendation vide reference first read above, permission is hereby accorded to fill up the following vacant aided posts at C.A.M. High School, Nellore with the provisions of G.O.Ms.No.41 WD & CW Dept., dt.1-8-1996 and in due observance with the provisions of G.O.Ms.No.1, Education dt.1-1-1994, and also strictly following the procedure given in Rule-12 including sub-rule (6) of Rule-13 of G.O.Ms.No.1, Education, dt.1-1-1994 read with guidelines issued in G.O.Ms.No.75, Edn., dt.23-9-2002 and Procs. Rc.No.1000/B1-3/02 dt.24-9-2002 of the C & DSE, A P , Hyderabad, and subject to pending outcome of judgment of the Hon’ble Supreme Court of India in the SLP filed against the orders in W.A.No.1519/1999. S.No. Category of Post No. of Posts Roaster 1 B.Ed. (Maths) 03 1 OC (W) 1/100 2 SC (W) A/B 2/100 3 OC (G) 3/100 2 B.Ed. (Physics) 01 O.C. (W) 1/100 3 Secondary Gr. Teacher 04 1 SC A/B (W) 2/100 2 OC (G) 3/100 3 BC (A) (W) 4/100 4 OC (G) 5/100 Any deviation in this regard will be viewed seriously. It is also informed that the selection of approval will be made under sub-rule (8) & (9) of Rule-12 of G.O.Ms.No.1, Edn., dt.1-1-1994 and also as per the orders issued in G.O.Ms.No.100, Edn., (PS-I) Dept., Dt.16-8-2001. Receipt of these proceedings should be acknowledged by return of post. Sd/- C.A.V. Prasad, REGIONAL JOINT DIRECTOR OF SCHOOL EDUCATION, GUNTUR. To The Dist.Educational Officer, Nellore Copy to the Dy. Educational Officer, Nellore. Copy to the Correspondent, CAM High School, Nellore. In furtherance of the permission granted by the Regional Director, the management of the school requested District Employment Officer, Nellore to forward the names of eligible persons. Simultaneously, letter dated 27-9-2004 was sent to District Educational Officer, Nellore to depute departmental nominee. After seeking some clarification from the management of the school, District Educational Officer, Nellore nominated Shri M. Ramalingam, Deputy Educational Officer to participate in the process of selection. As a sequel to this, the management of the school issued an advertisement, which was published in two daily newspapers i.e. Eenadu and Andhra Jyothi for filling up eight vacant posts (3 - B.Ed. Assistants – Maths, 1 – B.Ed. Physics and 4 – SGBT teachers). During the currency of recruitment process, the management of the school was informed that the government has issued Memo dated 20-10-2004 imposing ban on the filling up of the vacant posts and, therefore, the selection process cannot be completed. Thereupon, the management filed Writ Petition No.22804 of 2004 for grant of a declaration that the decision contained in Memo dated 20-10-2004 is not retrospective and the same cannot be applied to the ongoing process of recruitment meant for filling up the vacant aided posts for which permission has already been granted by the competent authority. In the counter filed by Shri A. Krishna Rao, District Educational Officer, Nellore on behalf of the non-petitioners (appellants herein), it was not disputed that in furtherance of sanction granted by the competent authority i.e. the Regional Joint Director, Guntur, the management of the school initiated the process of recruitment of eight teachers and that Shri M. Ramalingam, Deputy Educational Officer was nominated was departmental representative on the Staff Selection Committee. Not only this, the deponent averred that the Correspondent of the School fixed the date of interview in consultation with Shri M. Ramalingam. According to Shri A. Krishna Rao, the process of selection could not be completed because Shri M. Ramalingam was promoted and posted as District Educational Officer, Chittoor. Thereafter, the management of the school suo motu fixed 14-12-2004 as the date of interview, but the same had to be stayed in view of the ban imposed by the State Government vide Memo dated 20-10-2004. The learned Single Judge noted that by an order dated 9-12-2004 passed in Writ Petition No.22188 of 2004, a Coordinate Bench had declared that the ban imposed by the State Government was not applicable to the cases in which permission had been accorded by the competent authority to fill up the vacant posts and held that the management of the school is entitled to fill up the vacant posts. The appellants have challenged the direction given by the learned Single Judge by asserting that in view of the general ban imposed by the State Government, the management of the school cannot make recruitment on the basis of permission granted by the Joint Regional Director vide order dated 22-9-2004 and fresh permission is required to be obtained for filling up the vacant aided posts. The factual matrix of the other appeals is by and large similar. The writ petitions filed by the management of different schools were allowed by the learned Single Judges and directions were issued to the appellants to allow the petitioners to complete the process of selection and appoint the selected candidates. In the writ appeals, the appellants have challenged the orders of the learned Single Judge on grounds similar to those contained in Writ Appeal (SR) No.121938 of 2005. Before proceeding further, we deem it proper to notice some of the interim orders passed in Writ Appeal No.1578 of 2005 (Writ Petition No.15839 of 2005) – The Govt. of A.P. and two others v. Sri Sevadas Vidyamandir High School, Hyderabad because implementation of one such order dated 31-10-2005 has resulted in institution of a large number of writ petitions by the managements of the private schools. The details of the interim orders are as under: 1) On 8-9-2005, some of the appeals were admitted and ordered to be fixed on 31-10-2005. 2) On 31-10-2005, the cases were adjourned for three weeks and the following order was passed: “In the meantime, the Government is directed to complete its process of rationalization and fill up all the posts, which are necessary to be filled up. If the posts are not filled up in the petitioner institutions where the need is already established, the establishments shall be at liberty to make appointments on their own after expiry of three weeks. There are some institutions where we are told that selections were made prior to 3- 6-2003, which were permitted by the Director of Education as well. Those appointees shall continue to remain in service.” 3) On 30-11-2005, the Court took cognizance of the statement made by learned counsel for respondent No.1 that the Government Pleader has supplied a paper book containing several orders and reports, which did not form part of the record of the writ petition and gave liberty to them to file supplementary affidavit and additional documents. 4) On 6-1-2006, the case was adjourned to 27-1-2006 with the direction that a comprehensive statement containing the details of the vacant posts available in different private recognized aided schools, the date on which requisition was sent to the competent authority, the date on which approval, if any, was granted by the competent authority, the date on which the meeting of the selection committee was held and the date on which recommendations were made be supplied to the Court. 5) On 3-3-2006, the learned Advocate General produced the original file containing the Minutes of the meeting held on 8- 10-2004 and D.O. Letter dated 18-10-2004 pursuant to which paragraph 17 of the original Minutes was substituted. After going through the same, the Court directed the learned Advocate General to seek instructions from the concerned persons and make a statement whether or not the amended paragraph 17 of the Minutes was recorded with the approval of the Chief Minister. 6) On the next date of hearing i.e. 7-3-2006, the learned Advocate General stated that the amendment was made in paragraph 17 of the Minutes recorded on 8-10-2004 with the approval of the Chief Minister and the Education Minister. He also supplied a bunch of papers to Shri M.V.S. Suresh Kumar, counsel representing some of the contesting parties. Thereupon, learned counsel for the respondents sought leave of the Court to amend the writ petition, which was granted. Since that order has bearing on the decision of some of the writ petitions, the same is reproduced below: “In furtherance of order dated 03-03-2006, learned Advocate General, on the basis of the instructions given to him, made a statement that the amendment was made in paragraph 17 of the Minutes recorded on 08- 10-2004 at the approval of the Chief Minister and the Education Minister. The learned Advocate General has also supplied a bunch of papers to Shri M.V.S. Suresh Kumar, learned counsel representing some of the contesting parties. Shri Suresh Kumar and other learned counsel appearing for the contesting parties say that they may be given liberty to challenge the legality of Memo No.12080/COSE/A2/2004-4 dated 20-10-2004 and incorporate other amendments in one of the writ petitions out of which the present appeals arise. The learned counsel appearing in other cases state that they may be given liberty to make submissions on the basis of amendments carried out in one of the writ petitions and that they would not insist on seeking leave to amend other petitions. Although the learned Advocate General suggests that all the cases may be remanded to the learned Single Judge for fresh adjudication, keeping in view the fact that the matters have remained pending before the Court for more than one year and some of the selected persons have not been able to get the benefit of selection, we deem it proper to entertain the request of the learned counsel for the writ petitioners for grant of leave to amend the writ petition with the corresponding liberty to the respondents to file counter to the amended petition. Shri Suresh Kumar says that necessary amendments will be carried out in the writ petition within a period of two weeks from today. In view of the statement made by the learned counsel, further hearing of the appeals and the writ petitions is adjourned to 12-04-2006 with liberty to the counsel for the writ petitioners in one of the cases to comprehensively amend the pleadings and also to challenge the legality of memo dated 20-10-2004, if so advised. The amended petition be filed within two weeks, after supplying advance copy to the office of the Advocate General. The non-petitioners in the writ petition, may file amended counter within next two weeks. At this stage, some of the learned counsel for the writ petitioners submit that the Court may stay the end product of exercise undertaken by the Department for declaring the teachers surplus in terms of Rule 10 (12) of the 1993 Rules. According to them, if the posts are filled up by appointing surplus teachers, the selected candidates will suffer irreparable injury. The learned Advocate General submits that exercise for determination of the surplus hands was undertaken in compliance of the direction given by the Court in the month of October, 2005 and orders for posting of the surplus teachers were also passed sometime in November 2005, but the Management of the private aided schools did not implement the orders passed by the competent authority. He submits that the rights of the selected candidates, as and when determined by the Court, will be appropriately respected by the Government and therefore, the Court may not stay the implementation of the orders issued as a result of the exercise undertaken by the Department. We have thoughtfully considered the respective submissions and are of the view that, at this stage, it will not be in the interest of either of the parties to stall the process initiated by the Department for determination of the surplus hands. Therefore, we direct that there shall be no stay on the exercise undertaken by the Department. There shall also be no stay in transfer of teachers against the vacant posts but the exercise of rationalization and transferring the surplus hands shall remain subject to the final adjudication of appeals and writ petitions and the rights of the selected teachers shall not, in any manner, be adversely affected on account of implementation of the policy of rationalization. This would necessarily mean that if the writ petitioners succeed, then the transferred teachers will have to be displaced from their posts in order to make room for the selected hands. The above direction would remain subject to the condition that the transferred teachers shall not be compelled to join their respective posting till 23-04-2006 because, the examinations in various schools are still going on and transfer of teachers may adversely affect the careers of the students. This would necessarily mean that after 23-04-2006, the transferred teachers shall have to join at their respective places, failing which the competent authority shall be free to take appropriate action in accordance with law.” In furtherance of the leave granted by the Court, amended petition was filed in Writ Petition No.22804 of 2004 – C.A.M. High School, Nellore v. Government of Andhra Pradesh and others to challenge the legality and vires of Memo dated 20-10-2004. In the affidavit filed by Shri Y.T. Mitra, it is averred that Memo dated 20-10-2004 is violative of Rule 12 of the Andhra Pradesh Educational Institutions (Establishment, Recognition, Administration and Control of Schools under Private Managements) Rules, 1993 (for short, ‘the 1993 Rules’) and G.O.Ms.No.75, School Education (PS-2) Department, dated 23-9-2002. Another plea taken by the petitioner is that Memo dated 20-10-2004 does not truly reflect the decision taken in the meeting held on 8-10-2004 under the Chairmanship of the Chief Minister inasmuch as, even though no decision was taken to ban recruitment against the existing vacancies in the cadre of aided posts, the Minutes of the meeting recorded by the concerned authority were amended on 19-10-2004 at the instance of Principal Secretary (W & P) without the permission/approval of the Hon’ble Chief Minister or the Hon’ble Education Minister. The petitioner has also assailed the exercise undertaken by the department for rationalization by contending that the same is contrary to the provisions contained in the 1993 Rules. We may now advert to the steps taken by the authorities of the Education Department in furtherance of interim order dated 31-10- 2005 and also notice factual matrix of some of the writ petitions filed for questioning the rationalization exercise undertaken by the department. On receipt of the copy of order dated 31-10-2005, the Director addressed letter dated 3-11-2005 to the Regional Joint Directors and District Educational Officers requiring them to take up the rationalization work in private aided schools as per the norms prescribed by the State Government vide G.O.Ms.No.103, dated 5-8- 2005. The District Educational Officers were directed to constitute teams consisting of three members comprising Head Masters/ Lecturers of training colleges. Each team was required to visit 20 aided schools within one week and submit report to the District Educational Officer in the prescribed formats – I, II and III. The latter was required to complete the work of rationalization by 14-11-2005. In compliance of these directions, the District Educational Officers constituted teams for inspection of various private aided schools and declared some teachers surplus. They also issued consequential orders on 17th, 19th and 20th November, 2005 for shifting the surplus teachers. (Xerox copies of these orders have been included in separate paper book filed by the learned Advocate General). Writ Petition No.25215 of 2005 – Private Recognised Aided Schools Managements Association, Vijayawada and 16 others v. Government of Andhra Pradesh and another In this petition, the petitioners have challenged G.O.Ms.No.103, dated 5-8-2005 and instructions issued by the Director of School Education vide letter dated 3-11-2005. They have claimed that the staff of private schools can be declared surplus in terms of Rule 10 (17) of the 1993 Rules only if there is a fall in strength for two successive academic years whereas G.O.Ms.No.103, dated 5-8-2005 provide for amalgamation of schools, identification of surplus staff and posts and shifting and transfer of staff without any tangible ground. In paragraphs 12 and 13 of the affidavit filed by him, Shri M. Anjaiah, Secretary of petitioner No.1 association, has averred as under: “12. On the basis of the instructions given by the respondents, the DEOs have conducted a perfunctory and hasty enquiry and have sought to submit reports in respect of all schools in the State within a period of three days. No proper care was taken for ascertaining the total strength of students of different schools at different levels for two consecutive years and also the details regarding the staff of the respective schools work in un-aided, yet recognized posts were not calculated. In fact, on account of this arbitrary procedure that has been followed, the respondents are also not verifying and scrutinizing the records consistently submitted by each of the schools admitted to grant-in-aid scheme whereunder the strength of the students and the staff position are submitted on a monthly basis for the purpose of seeking the release of grant-in-aid funds. 13. In addition to this periodic inspections are also conducted on behalf of the DEOs in respect of various schools which reports also disclose the students strength and position in respect of the various levels of each school. These reports have also not being considered at all. There are also audit reports submitted in respect of all the high schools which also contain all the details concerning the staff and the students of the concerned school. Without referring to any of these records and also the registers maintained with respective schools, the team only resorted to an arbitrary head count of the students attending on a particular date and on the basis of such inspection submitted their reports for transferring out posts and staff.” In the counter-affidavit filed by him, Dr.P. Krishnaiah, Secretary to Government, School Education Department has claimed that G.O.Ms.No.103 dated 5-8-2005 was issued because, while the prescribed teacher-pupil ratio is 1 : 40, there are more number of teachers than required. According to Shri Krishnaiah, the actual teacher - pupil ratio in the government school is 1 : 32 whereas in the private institutions, including unaided institutions, the teacher – pupil ratio is