IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE SECOND DAY OF JULY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE GODA RAGHURAM WRIT PETITION NO : 16053 of 2004 Between: 1. J.Paul Jaya Chandran, S/o.J.Jayardhana Rao, R/o.A.T.Agraharam, Guntur. 2. Y.Annan Kumari, D/o.Y.Raja Rao, R/o.Venkata Reddy Nagar, Narasaraopet, Guntur Dist. 3. P.Suneetha, D/o.P.Ananda Kumar, R/o.H.No.12-12-50, Kothapet, Guntur. 4. J.Satyavathi Debora, D/o.J.Jaya Rao, R/o.H.No.18-26-12, Ananda Pet, Guntur. 5. A.Santha Kumari, D/o.A.David, Talluri Nagar, Narasaraopet, Guntur Dist. 6. P.Syamala Devi, W/o.J.Ishmael Babu, R/o.D.No.3-10-1A, Old Rattabhipuram, Guntur. 7. Shaik Asmathunnisa Begum, W/o.Subhani, R/o.D.No.18-19-106, Baraimam Punja, Guntur. 8. Shaik Yesdani Basha, S/o.John, R/o.D.No.17-10-44/2, Ananda pet, Guntur. 9. Shaik Mansthan Vali, S/o.Hassaim Ahemed, R/o.D.No.12-1-43, PrakashNagar, Narasaraopet, Guntur Dist. 10. Karra Manjula Ratna Kumari, D/o.K.Luther Paul, R/o.Repalle Guntur District. 11. Doppalapudi Maikyam, D/o.D.Bhushanam, R/o.IOWA Quarters, Repalle, Guntur District. 12. Mukkala Heleena, D/o.M.Poulu, R/o.Krupavaram Compound, Tenali, Guntur 13. Gera Sugnamma, D/o.G.Yesuratnam, R/o.Isukapalli, Repalle, Guntur Dist. 14. Madasu Parimala Geetha, D/o.M.Issaiah, R/o.Mandavavari Veedhi Isukapalli, Repalle, Guntur Dist. 15. Chintala Hilda Ratna Swaroopa, D/o.Ch.Ananda Rao, R/o.H.No.12- 11-11, Ramireddi Thota, Guntur. 16. Thalathoti Jesudana Gnanamani, D/o.T.George, R/o.Cobald pet, Guntur. 17. Komarabathini Kanakavalli, D/o.K.Yesu, R/o.H.No.5-97-6, Brodiepet, Guntur. 18. PolimetlaCaroline, D/o.P.S.S.SundaraRao, R/o.H.No.5-65-8, Bordiepet, Guntur. 19. Lingamguntla Anithaluke, D/o.L.Heyet,R/o.H.No.4-16-21/1, Bharathpet, Guntur. 20. Gutta JyothiSree, D/o.Venkateswarlu, R/o.Motadaka Tadikonda Mandal, Guntur Dist. 21. Pondugula SrinivasaReddy ,S/o.SubbaReddy, R/o.Vipparla Palli, Rompicherla Mandal, Guntur Dist. 22. Prekki MadhaviRani,D/o.P.B.Sarma, R/o.H.No.5-66-92, Cobald pet, Guntur. 23. Devarapalli Suneetha, D/o.D.Joseph, R/o.Brodiepet, Guntur. 24. Meena SuvatsalaKumari,W/o.N.ChandraSheker, R/o.Naidupet, Guntur. 25. K.Christiana Jayanthimala, W/o. K.Rubensunder Sekhar, R/o.H.No.4-16- 141/1A, Bharatpet, Guntur. 26. C.V.L.Prasanna Kumari, D/o.Ch.L.Narasimham, R/o.D.No.25-18- 81/2, Sampatnagar Guntur. 27. M.Mary Suzan Sandhyavalli, D/o.M.Sundara Rao, R/o.Nagarampalem, Guntur. 28. Nethagani Mary Prasanna Kumari, D/o.N.D.G.Sundara Rao, R/o.H.No.26-12-36, Nagarampalem Guntur. 29. Mallepudi Christie Lalitha Kumari, D/o.M.Nelson, R/o.H.No.26-8-81, Nagarampalem,Guntur. 30. PagadalaAdilakshmi,D/o.P.SubbaReddy, R/o.H.No.11-14-1/10, Ramireddipet, Narasaraopet, Guntur Dist. 31. K.Vijayakumari,D/o.K.Jesuratnam, R/o.H.No3-2- 28,Nagarampalem, Guntur. 32. K.HenaravathiRani,D/o.K.Vedavathi, R/o.H.No.5-96-11, Brodiepet, Guntur. 33. ChikkalaYesuratnam,S/o.Ch.Daveedu, R/o.Moparru post, Amrthalur Mandal, Guntur Dist. 34. B.Lilly, D/o.Ch.Praveen, R/o.H.No.4-15-39/11,Bharatpet, Guntur. 35. Ch.Latha Bhanu Prasad, D/o.Rajendra Prasad, R/o.Kattevaram village, Tenali Mandal, Guntur Dist. 36. N.BabuChandrakala,W/o.N.M.Joseph, R/o.Pandaripuram, Chilakaluri pet, Guntur Dist. 37. V.VijayaMetilda,D/o.V.ManikyaRao, R/o.Christian pet, Rentachintala, Guntur Dist. 38. K.VijayaMani, W/o.P.Anand, R/o.Christian Health Centre, Macherla, Guntur 39. Chelli Samadanam,D/o.Ch.Honock, R/o.Punuru, Prakasam Dist. 40. Shaik Seshavali, R/o.Ediapadu Mandal, Guntur Dist. ..... PETITIONERS AND 1 The Govt. of A.P.rep.by its Prl.Secretary, School Education Dept., Secretariat, Hyderabad. 2 The Commissioner & Director of School Education, Andhra Pradesh, Hyderabad. 3 The Regional Joint Director of School, Education, Guntur. 4 The District Educational officer, Guntur. 5 The Dy. Educational officer, Guntur. 6 The Dy. Educational officer, Satthenapalli, Guntur Dist. 7 The Chairperson, Board of Secondary Education, Management of Andhra Evangelical, Lutheran Church, Guntur. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ, order or direction, more particularly one in the nature of writ of Mandamus, declaring the action of the 3rd Respondent in withholding the approval of the selections of the petitioners held on 3-1-2004 for the vacant Teaching posts in the schools under the control of AELC Management (R-7) as arbitrary, discriminatory and illegal and consequently declare that the selections of the petitioners to the said posts held on 3-1-2004 by the duly constituted selection committee is deemed to have been approved and the petitioners are entitled for appointment to the vacant Teaching posts to which they were selected with effect from 3-1-2004 without insisting for the approval of the 3rd Repondent and with all other consequential benefits, including notional seniority and all other attendant benefits, monetary or otherwise and pass. Counsel for the Petitioner: MR.K.RAMAMOHAN-MAHADEVA Counsel for the Respondent No.: GP FOR EDUCATION The Court made the following : THE HON’BLE SRI JUSTICE GODA RAGHURAM W.P.No. 16053 of 2004 ORDER: Heard Sri P. Gangaiah Naidu, learned Senior Counsel for Sri K. Ram Mohan Mahadeva, learned counsel for the petitioners; the learned Government Pleader for School Education for respondent Nos. 1 to 6 and Sri V. Jagapathi, learned counsel for the 7th respondent. The forty (40) petitioners herein initially sought certain reliefs. The reliefs were amended pursuant to an order of this Court dated 13- 09-2007 in W.P.M.P.No. 18075 of 2007. Qua the reliefs as amended, the petitioners seek invalidation of the order of the third respondent bearing reference Rc.No. 2503/131/04 dated 27-09-2005 and for a consequential direction to the third respondent to approve the selections made by the duly constituted Staff Selection Committee (S.S.C) and to grant all the benefits including the monetary, seniority etc., to the petitioners. The issues herein have a protracted litigative history. The petitioners were selected as Secondary Grade Basic Training Teachers and School Assistants for appointment in educational institutions administered by the Andhra Evangelical Lutheran Church (for short ‘AELC’). The several educational institutions administered by the AELC are claimed to be minority educational institutions. These were admitted to grant-in-aid by the State in respect of certain specified posts in each of the institutions. Despite several teaching posts admitted to grant-in-aid being vacant, the appropriate State authorities were not co-operating in the process of constituting selection committees for recruitment to these vacant aided posts. Aggrieved, the AELC filed W.P.No. 3953 of 2002 seeking a direction to the respondents therein to permit it to fill up the vacant posts. This writ petition was disposed of by the judgment of this Court dated 01-03-2002 directing the respondents to consider the requisition of the AELC. Consequent on the above direction, the Regional Joint Director of School Education, Guntur (the third respondent herein), pursuant to complementary directions of the first respondent-Government dated 20- 06-2002 and of the second respondent-The Commissioner & Director of School Education, Andhra Pradesh, Hyderabad dated 26-09-2002, issued an order dated 02-11-2003, in conformity with the provisions of Rule 2 (1)(f) of the Andhra Pradesh Educational Institutions (Establishment, Recognition, Administration and Control of Schools under Private Managements) Rules, 1993 (for short ‘the Rules’) {issued under Section 99 read with Sections 20, 21, 79, 80 and 83 of the Andhra Pradesh Education Act, 1982 (Act 1 of 1982)} and in supercession of specified earlier Rules and Rule 12 (6) of the Rules permitting the filling up of specified vacant aided posts in various enumerated high schools under the management of AELC, Guntur, with Christian minority candidates and where such candidates are fitted in a vacancy belonging to SC/ST, directing that the resultant SC/ST vacancies shall be carried forward to the next point. This order of the third respondent also directed due observance of the provisions of the Rules and other guidelines. The order dated 02-11-2003 specified the posts in each of the schools {administered by the AELC, Guntur} which were permitted to be filled up by the order. It is not in dispute that only the posts specified in the order were considered for selection. It is also not the contention of the State or any of the respondents, that posts other than those specified in the order of the third respondent dated 02-11-2003 were considered for selection and recruitment. Consequent on the third respondent’s order dated 02-11-2003, the fourth respondent issued an order dated 20-12-2003 constituting the S.S.C and specifying the composition of such committee. The Deputy Educational Officers, Sattenapalli and Guntur were nominated as departmental nominees to conduct the test and interview on 03-01-2004 at a specified venue. Clause (3) of the order of the fourth respondent also specified that if any irregularity is committed in the selection process, the officials/teachers of the selection committee will be held responsible and will face severe disciplinary action as per rules. On 03-01-2004, the S.S.C {constituted by the fourth respondent by the order dated 20-12-2003} conducted the written examination and conducted the interviews. The management forwarded proposals to the third respondent on 03-01-2004 itself intimating the results of the selection at which the petitioners were selected. These proposals by the management were followed up by the reminders dated 20-02-2004; 15-03-2004 and 15-05-2004. In an additional affidavit filed in this writ petition in October, 2007 and by the third respondent, it is admitted that this respondent had received the proposals of the selection from the departmental nominee and the management for its approval. As the competent authority failed to pass any order on the proposals of selection submitted by the management despite lapse of sufficient time; and the management failed to issue an order of appointment to the petitioners who are the selected candidates, they filed the present writ petition seeking several reliefs including invalidation of the order dated 27-09-2005 whereby the fourth respondent rejected grant of approval for the selections. The petitioners inter alia contend that in terms of Rule 12 (8) of the Rules, where approval of the proposals is not rejected within two months from the date of receipt of the proposals, they are deemed to have been approved. The petitioners impeach the orders of rejection dated 27-09-2005 on the ground that in view of the deeming provision, there is no power available for the third respondent to decline approval after the period of two months has expired and the deemed approval has occurred. They challenge the order dated 27-09-2005 also on the ground that the reasons spelt out for the rejection are irrational, irrelevant, arbitrary and misconceived. In the context of the plea of the petitioners, the following issues arise for consideration: (1) Whether the selection of the petitioners on 03-01-2004 by the duly constituted Staff Selection Committee, constituted pursuant to the order of the State Government 20-06-2002; the consequent order of the second respondent dated 26-09-2002; the orders of the third respondent dated 02-11-2003; the order of the fourth respondent dated 20-12-2003 is deemed to have been approved in view of the provisions of Rule 12 (8) of the Rules; and (2) Whether the impugned order of the third respondent is valid and consequently disentitles the petitioners to relief. Before taking up the issues for analysis, a contention urged on behalf of the official respondents by the learned Government Pleader for School Education requires to be considered. The learned Government Pleader would contend that the petitioners have no locus standi to seek appointment to aided posts, as it is the management of the schools that is alone entitled to seek such appointments. This contention does not commend acceptance by this Court. The petitioners desirous of employment, which is in the nature of a public employment having regard to the fact that they had applied for appointment to aided posts in privately managed schools; appeared before a duly constituted selection committee; were duly selected and the proposals sent to the third respondent, which represents the State of Andhra Pradesh. Rule 12 (8) of the Rules enjoins a ‘deemed approval’ if the proposals of selection are not rejected within two months from the date of receipt of such proposals. The petitioners have therefore a pre-eminent and legitimate expectation for appointment to the posts, which have a public employment flavour. Therefore the petitioners have the locus standi to seek the reliefs they claim in this writ petition. Issue No.1: Rule 12 of the Rules deals with appointment of staff. Sub-rule (2) of the Rule 12 enjoins that all staff, teaching as well as non- teaching shall be recruited through Staff Selection Committee to be constituted by the educational agency in accordance with the Rules. Sub-rules (2), (2A) to (5) of Rule 12 of the Rules enjoin the procedure and modalities for applying for constitution of Staff Selection Committee and other incidental house keeping provisions with regard to selection of staff. Sub-rule (6) of Rule 12 of the Rules enjoins that selection to the posts in all private educational institutions shall conform to the communal rotation roster, but this shall not apply to minority educational institutions only if they are selecting a candidate belonging to the concerned minority community and where such a candidate is fitted in a vacancy belonging to S.C./S.T., then the S.C./S.T. vacancy shall be carried forward to the next point. This Rule (Rule 12 (6) of the Rules) has been reiterated in the order of the third respondent dated 02-11- 2003 while permitting the enumerated AELC educational institutions to fill up the vacancies, as already noticed. Sub-rule (8) of Rule 12 of the Rules being relevant is extracted: “(8) All appointments made either to teaching or non-teaching staff by aided or un-aided institutions shall be subject to the approval of the competent authority. For this purpose the educational agency shall inform the competent authority within one month of the selection. The competent authority shall grant approval unless the selection has been in violation of these rules. If the approval is not granted within two months from the date of receipt of the proposals in respect of unaided posts, the approval shall be deemed to have been granted. In order to obviate confusion, it shall be incumbent on the educational agency to remind the competent authority one month after the initial communication, if no approval is received. The burden of proof of having communicated the selection to the competent authority shall lie with the educational agency.” On a true and fair construction of the provisions of Rule 12 (8), the inference is compelling that if the competent authority does not grant approval within two months from the date of receipt of the proposals, the approval shall be deemed to have been granted. Sub-rule (8) of Rule 12 of the Rules no doubt applies deemed approval for un-aided posts. A Division Bench of this Court by the judgment dated 23-11-1999 in W.A.Nos.604 and 950 of 1999 interpreted Rule 12(8) of the Rules and clearly held that the provision of deemed approval is applicable in respect of aided posts also. In the same judgment the court further held that the object of the Rule is that the appointments would be subject to the approval of the competent authority and such approval can be declined only if the selection is in violation of the Rules; otherwise no discretion is left with the authority to decline approval. It is further enjoined in Sub-rule (8) of Rule 12 that to obviate confusion, it is incumbent on the educational agency to remind the competent authority one month after the initial communication, if no approval is received. In the case on hand, not only has the initial proposal/intimation been made by the educational agency on 03-01- 2004 the very date of selection, but reminders were also issued on 20- 02-2004; 15-03-2004 and 15-05-2004. Rule 13 of the Rules sets out the composition of the Staff Selection Committee. A S.S.C was constituted by the fourth respondent in his proceedings dated 20-12-2003 in conformity with the provisions of Rule 13 of the Rules. In the absence of any clear transgression of law in the selection of the petitioners, the deemed approval mandated by Rule 12 (8) of the Rules comes into operation. Have the respondents placed any material before this Court to show any fundamental infirmity or illegality in the selection of the petitioners as would legitimize the dis- application of the deemed approval, is the question. Two counter affidavits have been filed on behalf of the respondents in this writ petition. In the counter affidavit dt 8.10.2004 by the 3rd respondent (filed on behalf of respondents 1 to 6) it is admitted that the 1st respondent issued an order dt 21.9.2002 permitting the 2nd respondent to grant permission to fill up the vacant aided teaching posts under the management of AELC, Guntur; that the 2nd respondent by his order dt 26.9.2002 granted permission to the AELC management to fill up 50 aided teaching posts in various High Schools in Guntur District as per the norms prescribed in G.O.Ms.No. 75 Education Department dt 23.9.2002; the guidelines issued in proceedings dt 24.9.2002 and as per the rules in G.O.Ms. No.1 Education Department dt 1.1.1994. It is also admitted that on the basis of the proposals received from the 4th respondent, orders were issued by the 3rd respondent in proceedings dt 2.11.2003 permitting filling up of the 43 aided vacant teaching posts out of the 50 posts already permitted by the 1st respondent. It is also admitted that a Central Staff Selection Committee (SSC) was constituted by the 4th respondent which conducted selections and that proposals were forwarded to the 3rd respondent for approval of the selections. According to this counter the 4th respondent had noticed certain defects in the selection by the SSC. These are : (i) the SSC had not prepared a general merit list in each category in the order of merit of candidates before finalizing the selection; (ii) the SSC had selected a general candidate against Roster Point No.6 which was earmarked for PHC(VH) (G) category in a SGT post; (iii) the SSC did not follow the rule of reservation for women as per the provisions of G.O.Ms.No. 41 WD&CW Department dt 1.8.1996 and women candidates who ranked on merit had to be shown against general vacancies but this was not followed in the selection, as a consequence two women candidates who were lower in merit lost selection; and (iv) the original certificate of one K.Suvarchala was not furnished along with the proposals. The above counter of the 3rd respondent pleads further that some allegations against the selections were received and were referred to the 4th respondent for enquiry and remarks. On verification of the proposals submitted by the 4th respondent other defects were noticed including non-furnishing of individual marks lists; list of candidates sponsored by the employment exchange, Guntur for all the posts had not been submitted; the paper notification calling for applications from SC candidates for all the posts was not submitted; the rule under which the departmental nominee had prepared merit list categorywise instead of general merit list before finalizing selection was not referred to; the reasons for not following the reservation for women as required by G.O.Ms. No.41, were not stated; and the reasons for changing the original roster points were not specified. According to this counter for the aforementioned defects and omissions, the proposals were returned to the 4th respondent by the 3rd respondent directing reexamination. While so, it is pleaded, the 2nd respondent by his order dt 14.7.2004 directed the respondents 3 and 4 to keep the selection in abeyance until further orders. Consequently instructions were issued by the answering respondent to the 4th respondent not to submit proposals for approval of the selections until further orders from the 2nd respondent. The 3rd respondent also states that an enquiry was conducted by the Special Officer, AP Open Schools on 12th and 13th August 2004 in the 4th respondent’s office and the records were seized. Strangely and disregarding the judgment of the Division Bench, dated 23.11.1999 in W.P.Nos. 604 and 950 of 1999 (adverted to supra), the 3rd respondent asserts that deemed approval under Rule 12(8) of the Rules is applicable only in respect of unaided posts. According to the 3rd respondent the selection of the petitioners was not approved and the 2nd respondent has also been addressed for necessary instructions in the matter. An “additional counter” was filed on behalf of the 2nd respondent, in October 2007. After broadly admitting the chronology of events referred to above including the selections made on 3.1.2004 by the duly constituted SSC, submission of proposals and receipt of the same, this respondent reiterates what is pleaded by the 3rd respondent viz., the receipt of certain complaints and the deficiencies, as has been pleaded by the 3rd respondent in his counter. In addition this respondent states that the management had issued an advertisement in Telugu news papers on 7.11.2003 and 15.11.2003 inviting applications only from Christian minority candidates and had addressed the employment exchange, Guntur to sponsor candidate belonging to SCs/STs and that this is an irregular action which should have been restrained by the respondents 3 and 4. It is further pleaded that the 4th respondent should not have specified the departmental nominee when the notification by the management was defective. In this counter, the 2nd respondent adopts and reiterates the wholly untenable position set out in the 3rd respondent’s counter, that the deeming provision in Rule 12(8) of the Rules is applicable only in respect of unaided posts, clearly ignoring the Division Bench judgment. It is further pleaded that the 1st respondent in G.O.Ms. No. 114 dt 30.08.2005 had amended Rule 12(8) removing the deemed approval clause. No explanation is offered nor any contention urged whether this amendment is retrospective and applicable to the selection of the petitioners made on 3.1.2004. While vaguely asserting that the selections made by the management of the AELC are in flagrant violation of the Rules governing employment, it is not clarified which rules are violated. The impugned order dt 27.09.2005 issued by the 3rd respondent is pleaded by the 2nd respondent, to have been issued in the aforementioned circumstances. By the impugned order (dt 27.09.2005), the 3rd respondent rejected grant of approval for the selections and appointments of the petitioners on the grounds: (A) that the roster points were not indicated; (B) that the minority status of the institution has not been confirmed; (C) that the conditions laid down in G.O.Ms. No. 75 Education Department dt 23.09.2002 and G.O.Ms. No. 1 Education Department dt 1.1.1994 and the guidelines issued by the 2nd respondent in proceedings dt 24.9.2002 had not been shown to have been fulfilled; (D) that the action of the respondents 3 and 4 in according permission (for filling up the posts and in constituting the SSC) is irregular in the context and (E) that the conduct of the management in issuing advertisement inviting applications only from Christian Minority candidates while addressing the Employment Exchange to sponsor candidates belonging to SC and ST, is irregular. Curiously the impugned order does not indicate which specific rules were violated in the selection. The pleadings do not indicate nor is any order of any of the respondents placed before this court whereby any action is disclosed to have been initiated against any official, either the respondents 3 and 4 or any departmental nominee who was a member of the SSC for the so called irregularities and illegalities. In view of the deeming provision in Rule 12(8) of the Rules, read in the light of the judgment of the Division Bench dated 23.11.1999 in W.P.Nos. 604 and 950 of 1999; in view of the admitted position that the selections were held after due permission from the competent authority, by a duly constituted SSC and the selection proposals were also received by the competent authority within time; and the further admitted position that no order of rejection of approval was passed within two months from the date of receipt of the proposals for approval of the selections on application of the deeming provisions approval is deemed to have been granted to the selection and no power, authority or jurisdiction is available to the respondents to reject the proposals after the period specified in Rule 12(8) of the Rules has passed. The amendment of Rule 12(8) by the orders of the 1st respondent in G.O.Ms. No. 114 dated 30.08.2005 cannot extinguish or retrospectively invalidate the operation of the deeming provision which applied to the selection of the petitioners. The selection of the petitioners is deemed to have been approved even prior to the issue of the amendment in G.O.Ms. No. 114. Such deemed approval can only be avoided by establishing a clear illegality in the selections viz., a violation of a statutory rule which is operative. Is there such violation shown, is the question? Issue No.1: Analysis and conclusion: As noticed above, the reasons recorded in the impugned order dated 27.9.2005 of the 3rd respondent for rejecting grant of approval of the selections/appointments of the petitioners are: (a) The roster points were not indicated: This objection proceeds on the assumption that rule of reservation according to the roster is applicable and must be followed even by private educational institutions. Rule-12(6) of the Rules mandates such reservations. These were challenged before this court. A Division Bench of