HIGH COURT OF JUDICATURE OF ANDHRA PRADESH THE HONOURABLE SRI JUSTICE V.ESWARAIAH WRIT PETITION NO. 21755 OF 2005 Friday, the Tenth day of February, Two Thousand and Eleven Between G.Sakuntala Petitioner AND The Government of Andhra Pradesh, Rep. by its Secretary, School Education, Secretariat Building, Hyderabad and others Respondents ORDER: The petitioner questions the order of the Government in GO Ms. No.2 Education (SE.PS) Department dated 11.1.2005 in so far as it relates to the rejection of her case for admitting grant-in-aid in respect of the post held by her as Telugu Pandit Grade – I, as illegal, arbitrary and discriminatory. It is the case of the petitioner that the third respondent Sri Viveknanda Gurukula Vidyala HighSchool, Mahanandi, Kurnool District was originally established as Upper Primary School during the year 1975-76 without any financial aid vide proceedings Rc.No. 52/B6/75 dated 21.10.1975 and subsequently the school was upgraded by opening class VIII with Telugu Medium during the year 1979-80 without aid vide GO Rt. No. 756 Education (F) Department dated 29.5.1980 and the said school is a private educational institution which was existing as on 1.9.1985 and as per Sec. 3 of Act 22 of 1988, the said school is entitled to receive grant-in-aid as per the recommendations of the Committee constituted in GO Rt. No. 220 Education (SE-1) Department dated 27.1.1989. The petitioner was appointed as on 16.7.1986 as Telugu Pandit Grade – I against a sanctioned unaided post and her appointment was also approved by the District Educational Officer, Kurnool vide proceedings Rc.No. 10202/B2/93 dated 16.5.1994 on an un-aided post. From the year 1981-82 vided proceedings Rc.No. 3336/D1-2/93 dated 6.4.1994 of the Director School Education, Hyderabad, the creation of the posts were ratified including the petitioner’s post of Telugu Pandit Grade-I. It is stated that the Government issued GO Ms. No. 238 Education (SSE) Department dated 27.5.1986 admitting all the schools that were opened after 1.4.1977 with the permission of the competent authority and have completed minimum of five years in respect or girls schools and four years in respect of Oriental Schools for the grant-in-aid. For admitting such schools to grant-in-aid, certain complaints were received and, therefore, to process the said complaints with regard to the eligibility to admit grant-in-aid, the Government constituted a High Level Committee vide G.O. Rt. No. 220 Education (SE-1) Department dated 24.2.1988 to look into every case of grant-in-aid and to forward the recommendations for the release of grant-in-aid and also to withdraw the grant-in- aid in respect of certain schools which are not entitled therefor. The Government of Andhra Pradesh has enacted the Andhra Pradesh Educational Institutions Grant-in-Aid (Regulation) Act, 1988 (Act 22 of 1988). As per Section 3 and 4of the said Act, the private educational institutions established after 1.4.1977 and existing as on 1.9.1985 are entitled to receive the grant-in-aid and in respect of the said cases, unless the concerned Committee constituted under GO No. 220 dated 24.2.1988 recommends for the grant-in-aid. It is the case of the petitioner that the school in question was established within the permitted period and, as such, the third respondent school is entitled for the grant-in-aid. In fact, the Government constituted a High Level Committee under the Chairmanship of the Commissioner and Director of School Education to look into every case of grant-in-aid who scrutinized the case of third respondent school for admission to grant-in-aid for the post of teaching and non-teaching and accordingly, the High Level Committee recommended vide its letter RC No.1452/92 dated 28.10.1994 to the Government to the effect that the third respondent institution was permitted to be established between 1.4.1977 and 1.9.1985 and has completed the required period of five years of existence in respect of oriental schools and, as such, entitled for the grant-in-aid. Accordingly, the committee on the grant-in- aid, after duly following the prescribed criteria recommended the proposals in respect of various posts in which Telugu Pandit Grade-I is also recommended for admission to grant-in-aid. Apart from it, the post of Physical Education Teacher and two posts of Record Assistants were also recommended, as is evident from the Annexure 2 at Sl. No.4 of the letter dated 28.10.1994. The said post for admission to grant-in-aid was not at all considered by the government and meanwhile, one D.Musal Reddy and others filed W.P. No. 7782 of 2001 to declare the action of the respondents in not admitting their posts to grant-in-aid on par with similarly situated posts in other schools as discriminatory, as the Government have admitted certain posts to grant-in-aid in respect of similarly situated schools. The said writ petition was dismissed on the submission made by the learned Government Pleader that in view of the policy introduced by the Government in GO Ms. No. 75 School Education (PS-2) Department dated 23.9.2002 with regard to the recruitment of vacant aided teaching and non-teaching posts and admission to grant -in-aid, no further orders are necessary to be passed and if the writ petitioners have any cause of action, they are entitled to approach this court. In view of the aforesaid submission made by the learned the learned Government Pleader that their cases would be considered for admitting their posts to grant-in-aid, the petitioners did not pursue the matter and waited for consideration. As their case was not at all considered, one of the petitioners in the said writ petition namely D.Musal Reddy, who was working as Physical Education Teacher, filed W.P. No. 23859 of 2003 and obtained interim order and for non-implementation of the said orders, he filed a contempt case and accordingly, the Government implemented the orders of the court and issued GO Ms. No. 144 School Education (PS.I) Department dated 1.10.2004 admitting the post of Physical Education Teacher in respect of said Musal Reddy to grant-in-aid and the third respondent school pursuant to the recommendation of the High Level Committee from the date of recommendation i.e. 28.10.1994, as a special case subject to certain conditions. Similarly P.Kasi Reddy, Record Assistant also approached this Court and filed W.P. No. 20241 of 1999 and this court by order dated 4.4.2000 allowed the writ petition directing the Government to admit the said post of Record Assistant to grant-in-aid from 1.11.1994, as recommended by the High Level Committee vide its letter dated 28.10.1994. It is stated that the said order was also implemented vide GO Rt. No. 102 Education Department dated 2.9.2000 with effect from 1.11.1994 admitting the post of Kasi Reddy to grant-in-aid. It is case of the petitioner that the ban orders of the Government under Act 34 of 1994 has no application to the case of the petitioner, as the petitioner is entitled for admission into grant-in-aid as per Act 1 of 1982 (2 of 1988). It is further stated that the action of the Government is discriminatory inasmuch as similarly situated posts in different schools were admitted into grant-in-aid while denying the said benefit to various other schools. In the instant case, in fact, the third respondent school sent the proposals for admission to grant-in-aid. Admission of the posts of Record Assistant and Physical Education Teacher in respect of the above said two persons, is not in dispute. In the counter also, it was admitted that the said posts were admitted to grant-in-aid vide aforesaid Government Orders. The correspondent also sent proposals for admission of the unaided posts to grant-in-aid. In fact, the High Level Committee, which has already considered and recommended for admission of the posts of the third respondent institution to grant-in-aid vide minutes dated 28.10.1994. It is stated that the Commissioner and Director of School Education also submitted proposals to the High Level Committee for specific clearance and to send report to the Government along with Committee’s recommendations in terms of GO Rt. No. 220 dated 24.2.1988 and the High Level Committee decided that no new posts of grant-in-aid would be created and the existing vacancies will also not be filled up except what has been specifically authorized since there is a general ban on the recruitment except for the posts for which permission was specifically granted by the Government. It is stated that the High Level Committee in the instant case met on 28.12.1994 and observed that in view of the instructions issued by the Government in Memo No.12080/COSE/A2/2004-4 dated 20.10.2004 that there is no need to consider the posts for admission to grant-in-aid. Accordingly, in the instant case, the recommendation of the High Level Committee considered the proposals in respect of the third respondent school and submitted by the Director of School Education, Hyderabad, to the Government vide letter No. 910/B3/2003 dated 7.10.2005 and the Government vide impugned GO, decided to reject the proposal to admit the post of the petitioner herein including various other posts to grant-in-aid on the ground that the cases are not fit for consideration as the average attendance of the pupils in class/section in most of the schools is uneconomical. In so far as the third respondent school is concerned, certain information had been called for by letter dated 28.12.2004 and in view of the instructions of the government in Memo dated 20.10.1994, no new post to grant-in-aid would be created. Learned counsel appearing for the petitioner submits that it is not a new post to be filled up but it was the existing post and as stated above, the petitioner is entitled to be admitted to grant-in-aid in terms of the recommendations of the High Level Committee in GO Rt. No. 220 Dated 24.2.1988. The learned Government Pleader submits that as per the provisions of Secs.45(2) & (3) of the A.P. Education Act, 1982, it is for the Government to sanction such grant or for good and sufficient reasons and the Government also can refuse to sanction such grant and any order passed by the government either refusing or sanctioning the grant, shall be final and shall not be questioned in any court of law. Thus it is stated that the aforesaid impugned G.O. is legal and valid. On the other hand learned counsel appearing for the petitioner submits that the Hon’ble Supreme Court of India in a case of Government of Andhra Pradesh and others Vs. G.V.K. Girls High School([1]) held that what is removed by the Act 22 of 1995 is the right created by the Government orders and not the rights created by Act 1 of 1982 and Act 22 of 1988. If any Government Order had conferred any right to the institutions enumerated in the Annexure to GO 326 dated 17.10.1989 read with GO 178 dated 23.7.1990, it was only those rights that were intended to be removed retrospectively by Section 2 from 17.10.1989. In other words the Legislature while enacting Section 2 of Act 34 of 1995 failed to remove the rights conferred by the Principal Act 1 of 1982 and Act 22 of 1988 read with the Committee’s declaratory findings. It was further held that the Act 34 of 1995 being retrospective only from 17.10.1989, does not go beyond that date into the back years. Thus the rights created by Act 1 of 1982 and Act 22 of 1988 read with the Committee’s recommendations have not been nullified by Act 22 of 1995. Therefore, it is stated that the ban orders are not applicable in the instant case, as the petitioner’s post is liable to be admitted to grant-in-aid, as per Section 3 and 4 of Act 22 of 1988, as the third respondent school is established in between the permitted period and there was no prohibition for admitting it into grant-in-aid. It is further stated that in fact, in similarly situated school namely Lal Bahadur English Medium High School, Gooty Road, Ananthapur, whose case was also rejected for admitting the non-teaching posts to grant-in-aid, as was done in case of certain other posts in other schools, filed W.P. No. 8405 of 2004 and this court, after noticing the admission of the aforesaid two persons and other cases into grant-in-aid, allowed the said writ petition by order dated 22.4.2008 and accordingly the said orders were implemented by the Government and issued Memo No.10090/PSJ/A1/2009 dated 30.7.2009. In the instant case, admittedly, two colleagues of the petitioners were admitted to grant-in-aid, who are similarly situated and, therefore, it goes without saying that the Government is not entitled to discriminate the case of D.Musal Reddy and Kasi Reddy with that of the petitioner, whose cases were considered by issuing GO Ms. No. 144 School Education (PS.I) Department dated 1.10.2004, admitting their posts to grant-in-aid. Therefore, I am of the opinion that as the petitioner is qualified to hold the post of Telugu Pandit and her appointment was also approved and ratified and the said post was also recommended for admission into grant-in-aid as long back as on 28.10.1994 by the High Level Committee and such posts in various similarly situated schools were admitted to grant-in-aid, it cannot be said that the petitioner is not entitled for admission to grant-in-aid. Accordingly, the impugned order in so far as it rejects the case of the petitioner from being admitted to grant-in-aid, is set aside and the writ petition is allowed directing the respondents to reconsider the case of the petitioner on par with the case of D.Musal Reddy and PKasi Reddy, conferring similar benefits as was done under GO Ms. No. 144 School Education (PS.I) Department dated 1.10.2004 and pass appropriate orders in accordance with law. Consequently, the writ petition is allowed, as stated above. No order as to costs. ___________________ Justice V.Eswaraiah February 10, 2011 MAS [1] 2000(6) ALD 84 (SC)