IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE THIRTEENTH DAY OF AUGUST TWO THOUSAND AND FOUR PRESENT THE HON'BLE MR JUSTICE K.C. BHANU W.P.Nos.21697 of 1994, 23602 of 1996 and 20659 of 1999 W.P.No.21697 of 1994: Between: K.M.R.Achari, S/o.K.Muniswamy, Hindu A/44 years, R/o.Secunderabad ..... PETITIONER AND 1. The Secretary to Government of Andhra Pradesh, Higher Education Department, Secretariat, Government of Andhra Pradesh, Hyderabad. 2. The Commissioner of College Education, Hyderabad. 3. The Correspondent, Loyola Academy Degree College, Old Alwal, Secunderabad. 4. Fr.U.Paul Satyanarayana, Principal, Y.S.Raja Reddy Degree College, Pulivendula, Cuddapah District. .....RESPONDENT 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 particularly one in the nature of writ of certiorari calling for the records relating to Proceedings No.Rc.203/PC/III-1/94, dated 1.11.1994 on the file of the 2nd respondent and consequent to the same as illegal, arbitrary and in violation of G.O.Ms.No.127 Education (CE-I) Dept. dated 7.6.1998 and further direct the respondents 2 and 3 to appoint the petitioner in the post of Principal of the 3rd respondent-college w.e.f. the date of representation of the petitioner i.e. 26.12.1994 with all consequential benefits. Counsel for the Petitioner: MR.A.BHASKARA CHARY Counsel for the Respondent Nos.1 and 2: G.P. for Higher Education Counsel for the Respondent Nos.3 and 4 : MR.T.MARTIN The Court made the following : WRIT PETITION No : 23602 of 1996 Between: Dr.K.M.R.Achari, S/o.K.Munuswamy Achari Aged 45 years, R/o.Secudnerabad .. Petitioner AND 1. The Secretary to Government of A.P., Education Department, Hyderabad 2 The Commissioner of Collegiate Education, Hyderabad 3 The Correspondent, Loyala Academy Degree College, Old Alwal, Secunderabad. 4 Fr. Innaiah, Principal, Loyala Academy, Degree College, Old Alwal, Secunderabad. .....RESPONDENT 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, or order or direction more particularly one in the nature of Mandamus declaring the Proceedings L.Dis.No.1927/PC/III-1/95, dated 4.4.1996 on the file of the 2nd respondent as illegal, arbitrary and violation of Govt. orders and circulars. Counsel for the Petitioner: MR.A.BHASKARA CHARY Counsel for the Respondent Nos.1 and 2: GP FOR HIGHER EDUCATION Counsel for the Respondent Nos.3 and 4: Nil The Court made the following : WRIT PETITION NO : 20659 of 1999 Between: Dr.K.M.R.Achari, S/o.Munuswamy Achari Lecturer in Physics, Loyola Academy Degree College, Alwal, Secunderabad. .. Petitioner AND 1. Government of A.P., rep. By its Principal Secretary to Government, Education Department, Secretariat, Andhra Pradesh, Hyderabad. 2. The Commissioner of Collegiate Education, Ahdra Pradesh, Nampally, Hyderabad. 3. The Correspondent, Loyola Academy Degree College, Old Alwal, Secunderabad. 4. Rev. C.J.John, Principal, Loyola Academy Degree College, Old Alwal, Secunderabad. .....RESPONDENT 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 or direction or order more particularly one in the nature of Mandamus declaring the appointment of the 4th respondent as the Principal of the 3rd respondent college as highly illegal, arbitrary, unjust and void and contrary to the G.O.Ms.No.127, Education (CE.I) Department, dated 7.6.1993 and consequently set aside the said appointment and further declare that he is entitled to be appointed as Principal of the 3rd respondent college with effect from June, 1993 with all consequential benefits. Counsel for the Petitioner: MR.A.BHASKARA CHARY Counsel for the Respondent Nos.1 and 2: G.P. for Higher Education Counsel for the Respondent Nos.3 and 4: MR.P.DHARMESH The Court made the following : HONOURABLE SRI JUSTICE K.C.BHANU W.P.Nos.21697 of 1994, 23602 of 1996 and 20659 of 1999 COMMON ORDER: The sole petitioner in these writ petitions raises common question of fact and law and accordingly they are dealt with by this common order W.P.No.21697 of 1994 is filed challenging the proceedings in R.C.No.203/PC/III-1/94, dated 1.11.1994 issued by the 2nd respondent which is in violation of G.O.Ms.No.127 Education (CB-I) Dept., dated 7.6.1993 with a consequential direction to the 2nd and 3rd respondents to appoint the petitioner as Principal of the 3rd respondent-Academy. The brief facts that are necessary for the purpose of disposal of the writ petition may be stated as follows: The petitioner was appointed as Lecturer in the 3rd respondent- Academy in 1976 on part-time basis. His services were regularised from 1978 and he is working as Senior Lecturer in the 3rd respondent- Academy with 16 years of service. He claims to be the senior most Lecturer in the 3rd respondent-Academy, which is running both Junior and Degree Colleges. In the year 1993, the post of Principal of the 3rd respondent-Academy fell vacant, as the then Principal left the college. The 3rd respondent-Academy was admitted to grant-in-aid in the year 1990. Therefore, all the Government Orders relating to service conditions of the employees are applicable to the 3rd respondent- Academy. According to him, he is eligible and entitled to be appointed as Principal of the 3rd respondent-Academy. In the month of June, 1993, one Peter Raj was appointed as Correspondent-cum-Principal by the Governing Body of the 3rd respondent-Academy though he is eligible and qualified to hold the post of Principal. He is working as Lecturer neither in the 3rd respondent-Academy nor in the same management. Therefore, he is eligible to hold the post of Principal. According to the petitioner, G.O.Ms.No.127, dated 7.6.1993, prescribes the procedure for selection of teaching staff including the selection of Principal. The management of the 3rd respondent- Academy did not consider the case of the petitioner in spite of representations made by him. The 1st respondent, in its Proceedings dated 29.7.1994, requested the 2nd respondent to take action as per the Government Orders basing on the representation made by the petitioner on 19.7.1994. As there was no response, the petitioner filed W.P.No.16338 of 1994 which was disposed of on 15.9.1994 directing the 1st respondent to take decision in the matter within six weeks. Thereafter, the 2nd respondent rejected the representation of the petitioner by his order, dated 1.11.1994. The same has been challenged in this writ petition. As the post of Principal of the 3rd respondent-Academy was admitted to grant-in-aid in the year 1990, the management of the Academy has to follow the Government Orders. When the management is not following the procedures prescribed by the Government in appointing the Principal, it is the duty of the 2nd respondent to see that the post of Principal of the Academy is filled up. The 2nd respondent, by his proceedings, dated 30.5.1994 addressed to all the correspondents of the aided colleges in the State directing them to fill up the post of Principal by promoting the senior most Lecturers of the same college and to relieve the Principals working on deputation under re-employment, but the 2nd respondent, rejected the representation of the petitioner on the ground that he has put up only four years of service in the aided college and therefore he is not eligible to be considered for the post of Principal. According to the writ petitioner, the date of appointment in the 3rd respondent- Academy has to be taken into consideration for reckoning 10 years of service. As Paul Satyanarayan left the 3rd respondent-Academy on deputation, the 2nd and 3rd respondents should have appointed the petitioner to the post of Principal, but the management brought one Father C.P. Peter Raj, Lecturer in English, Andhra Loyola College, Vijayawada which is under different management and posted him as full additional charge to the post of Principal of the 3rd respondent- Academy. Hence, the writ petition. The 3rd and 4th respondents filed a common counter affidavit denying the allegations of the writ petitions and stated that the 3rd respondent- Academy has been accepted as a Christian Religious Minority Educational Institution by the Director of Collegiate Education, Government of A.P., Hyderabad and the college is entitled to the protection granted under Article 30(1) of the Constitution of India and the petitioner was never designated as senior most Lecturer. The petitioner was initially appointed as part-time Lecturer on a purely adhoc basis and the same was extended from time to time. In the year 1983, Staff Selection Committee found the petitioner not up to the standard and did not select him, but in the year 1985, on the recommendations of the Staff Selection Committee, the petitioner was appointed as Lecturer. Therefore, the services rendered by the petitioner as part-time Lecturer on adhoc and temporary basis are not to be counted for seniority as the college was admitted to grant-in-aid only with effect from 16.4.1990. From that date onwards, the seniority has to be reckoned. Paul Satyanarayana, the Principal of the 3rd respondent-Academy has not left the college in 1993 but he was sent on deputation as Principal to Dr.Y.S.Raja Reddy Degree College, Pulivendula, and the competent authority approved the same keeping his lien pending with the 3rd respondent-Academy. Therefore, the question of filling up the post does not arise. The 4th respondent was asked to hold full additional charge only, since there was no clear vacancy and further, he was working as Vice Principal of the sister- institution. The 4th respondent was appointed as a Lecturer in English in the 3rd respondent-Academy on deputation having been duly authorized by the 2nd respondent. Peter Raj is having 10 years of service in aided college as Lecturer. It is further stated that G.O.Ms.No.127, dated 7.6.1993 and other connected Government orders are not applicable to the minority institutions and the petitioner never raised any objection with regard to the eligibility of Paul Satyanarayana to hold the post of Principal. Hence, he prays to dismiss the writ petition. The brief facts that are necessary for the purpose of disposal of the W.P.No.23602 of 1996 may be stated as follows: Challenging the proceedings in L.Dis.No.1927/PC/III-1/95, dated 4.4.1996 issued by the 2nd respondent in appointing one Innaiah as Principal of the 3rd respondent-Academy, this writ petition is filed. More or less, the grounds taken in this petition are similar to the grounds that were taken in W.P.No.21697/94. Therefore, it is redundant to repeat the same pleadings in this writ petition. W.P.No.20659 of 1999 is filed declaring the appointment of the 4th respondent as Principal of the 3rd respondent-Academy as illegal and arbitrary and contrary to the G.O.Ms.No.127, dated 7.6.1993. Firstly, the appointment of Peter Raj as In-charge Principal and secondly, the appointment of Innaiah as Principal of the 3rd respondent-Academy and thirdly, the appointment of C.J.John as Principal are contrary to the G.O.Ms.No.127, dated 7.6.1993 and that the Government Orders issued from time to time would govern the appointment of Principal by transfer. The learned counsel appearing for the writ petitioner, Sri A.Bhaskarachary has contended that the petitioner was appointed as Lecturer in the year 1976 and by the time, Peter Raj was appointed as Principal to hold full additional charge of the 3rd respondent-Academy, the petitioner is the senior most Lecturer and as per the Government Order, dated 7.6.1993, the senior most Lecturer has to be appointed as Principal. Whenever the Principal post is lying vacant, the seniority is not being followed and in spite of the instructions by the Government to appoint the senior most Lecturer as Principal the appointment procedure has not been followed by the 3rd respondent- Academy. The Government Orders issued from to time have to be followed by the 3rd respondent-Academy in making appointments to the post of Principal. Hence, he prays to quash the proceedings issued appointing Peter Raj as In-charge Principal vide proceedings in R.C.No.203/PC/III-1/94, dated 1.11.1994 and also quash the proceedings in L.Dis.No.1927/PC.III-I/95, dated 4.4.1996 appointing Innaiah as Principal and also to declare the appointment of the 4th respondent C.J.John as illegal, arbitrary and unjust. On the other hand, the learned Government Pleader for the respondent 1 and 2 has contended that the 2nd respondent passed the orders after correct appreciation of facts. As there was no regular vacancy, the appointment of Peter Raj has been accepted; and as the petitioner has not put up 10 years of service in the grant-in-aid post, he is not eligible to be considered to the post of Principal; and there was no clear vacancy to the post of Principal; and on both the grounds the case of the writ petitioner was rejected at the time of the appointment of Innaiah. The appointments of Innaiah and C.J.John to the post of Principal have been approved by the Commissioner of Collegiate Education. Therefore, these writ petitions have become infructuous. The learned senior counsel appearing for the 3rd respondent- Academy, Sri E.Manohar has contended that the 3rd respondent- Academy is a minority educational institution and for the purpose of better administration, it can appoint a suitable person to the post of Principal after approval from the authority concerned. Whenever the post is lying vacant, the same is being filled up on the basis of merit and eligibility criteria; and the minority educational institution can choose Principal of their choice with regard to the eligibility and suitability of the candidates. As the persons against whom, these writ petitions are filed are retired from service, the proceedings issued by the 2nd respondent cannot be quashed at this stage and these writ petitions have become infructuous. He has further contended that the Government can prescribe requisite qualifications for making appointments to the post of Principal or Lecturer and the writ petitions are liable to be dismissed. Heard the learned counsel for both the parties and perused the material available on record. The basis of the petitioner’s claim is mostly with reference to the G.O.Ms.No.127, dated 7.6.1993. One of the conditions for appointment to the post of Principal as laid down in the said Government Order is that the posts of Principals of Degree Colleges, Law Colleges of Education shall be filled up by recruitment by transfer from among the eligible qualified and suitable Lecturers with 10 years of service under the same management and in the absence of such Lecturers, by direct recruitment. According to the petitioner, the said Government Order applies to the minority educational institutions also, but according to the learned senior counsel, the said Government Order has no application to the minority educational institutions. Even assuming for a moment that the G.O.Ms.No.127 is applicable to the case of the petitioner, still the post of Principal of Degree College shall have to be filled from among the eligible, qualified and suitable lecturers with 10 years of service working under the same management. This Government Order does not indicate that senior most Lecturer shall be appointed as a Principal or shall be kept as in- charge Principal whenever any vacancy arises to the post of Principal. Even if the Government Order is applicable, the college can make appointment to the post of Principal from among the eligible, qualified and suitable Lecturers with 10 years of service working under the same management. With regard to W.P.No.21697 of 1994, the 2nd respondent rejected the case of the petitioner by its impugned proceedings, dated 1.11.1994 holding that the post held by the petitioner was admitted to grant-in-aid with effect from 16.4.1990 and as such he has put in only four years of aided service and therefore, he is not eligible to be considered to the post of Principal. The second ground on which the 2nd respondent rejected the case of the writ petitioner is that there is no clear vacancy for the post of Principal. It is the specific case of the petitioner that one Father Paul Satyanarayana who was the Principal of Loyola Academy left the college in 1993 and joined elsewhere and since then the post of Principal was vacant, but in the counter filed by the 3rd and 4th respondents, it is specifically stated that P.Satyanarayana has not left the College in May, 1993 but he was sent on deputation as Principal to Dr.Y.S.Raja Reddy Degree College, Pulivendula with effect from 19.7.1993 to 18.7.1996 as permitted by the 2nd respondent as per Proceedings Rc.No.1989/PC-II-3/95, dated 17.7.1993 keeping his lien. Therefore, it is a disputed question of fact, which cannot be decided under Article 226 of the Constitution of India because this fact is seriously disputed by the writ petitioner in his reply affidavit. Basing on the letter of the 3rd respondent-Academy, as P.Satyanarayana was on deputation, one Peter Raj, Lecturer in English working under the same management was kept as full additional charge to the post of Principal of Loyola Academy, Secunderabad, the competent authority, after taking into consideration the representation of the petitioner as well as the proceedings of the 3rd respondent-Academy passed the appropriate order, which does not suffer from any legal infirmities. The 2nd respondent also rejected the case of the petitioner as he put up only four years of service in aided college. Though the petitioner stated that he was appointed as Lecturer in 1976 on part- time basis and his services were regularized from 1978 onwards, the same is denied by the 3rd and 4th respondents. In their counter affidavit, they have stated that the petitioner was initially appointed as part-time Lecturer purely on adhoc basis for a certain period, which was being extended from time to time, but on the recommendations of the Staff Selection Committee, the petitioner was appointed as Lecturer in Physics on 7.5.1985. Though the petitioner stated that his services were regularized with effect from 7.9.1978 by an order, dated 10.5.1985, the said order has not been filed in the Court. Therefore, it is not known whether the petitioner has put up 10 years of service as on the date of keeping Peter Raj as full additional charge Principal. The other contention raised by the learned counsel for the petitioner is that the said Peter Raj was not working under the same management, but he was brought from Andhra Loyola College, Vijayawada and therefore, he cannot be appointed as per the impugned Government Order. The case of the respondents is that Peter Raj was working as Vice Principal of the sister-institution of the 3rd respondent-Academy. The 3rd respondent-Academy and Andhra Loyola College, Vijayawada are functioning under Andhra Jesus Province of Society of Jesus and he was appointed as Lecturer in English Loyola Academy, Secunderabad on deputation. He is in aided post and the Senior Lecturer in English. Therefore, the contention of the writ petitioner that Peter Raj was not brought from the same management is totally devoid of merit and unacceptable. The deputation of Peter Raj to the 3rd respondent-Academy is not under challenge. His deputation was approved by the competent authority. Now it has to be seen whether the Government Orders issued from time to time are applicable to the minority institutions. It is not in dispute that the 3rd respondent-Academy is a minority educational institution. As per G.O.Ms.No.12, Education (CE1-2) Department, dated 10.1.1992 certain procedures have been prescribed for selection of Lecturers/Junior Lecturers in Private Degree/Junior Colleges. The said copy of the Government Order was communicated to all the Correspondents/Special Officers of Private Aided and Un- aided Degree Colleges (except minority institutions) in the State for information and necessary action. By necessary implication as the copy of the said Government Order is not marked to the minority institutions, it is to be understood that the said Government Order applies to the private aided and un-aided Degree Colleges in the State. G.O.Ms.No.127, dated 7.6.1993 is an amendment issued to G.O.Ms.No.12 Education, dated 10.1.1992. It is not known whether this Government Order is communicated to the 3rd respondent. G.O.Ms.No.127 has no application to the 3rd respondent-Academy in view of the fact that the main Government Order is communicated to the 3rd respondent. The learned counsel for the petitioner placed strong reliance on the Sub-rule(2) of Rule-8 and Rule 19 of the Andhra Pradesh Minority Educational Institutions (Establishment, Recognition and Regulation) Rules, 1988 (hereinafter referred to as “the Rules, 1988”) and stated that educational agency shall follow the instructions issued by the competent authority from time to time which are meant to strengthen and streamline the educational standards and discipline. These rules shall apply to all educational institutions in the State coming under the A.P. Education Act, 1992 which are managed by the Minority communities (both religious and linguistic). Sub-rule(7) of the Rules, 1988 reads as follows: “An educational institution which, on account of receiving State funds as aid, cannot claim all the privileges of a minority educational institution. Such of the institutions which are receiving grant-in-aid or are desirous of getting grant-in-aid shall be entitled for recognition as minority educational institutions subject to the condition that the Government shall have power to order inspection of such institution.” Sub-rule(2) of Rule-8 of the Rules, 1988 are hereunder: “It is open for the educational agency to appoint candidates belonging to their community or to those belonging to other communities in which case they will have to be treated on par with the candidates belonging to the concerned community in all respects. In either case the appointments made require scrutiny about their eligibility and followed by approval by the competent authority.” Rule-19 of the Rules, 1988 reads thus: “Every educational agency shall follow the instructions issued by the competent authority from time to time which are meant to strengthen and streamline the educational standards and discipline.” On this aspect, the law is well settled that the government would be entitled to make regulations relating to the terms and conditions of employment of the teaching and non-teaching staff whenever the aid for the posts is given by the State as well as admission procedures. The learned counsel for the respondents relied upon a decision reported in BRAHMO SAMAJ EDUCATION SOCIETY AND OTHER Vs. STATE OF WEST BENGAL wherein, their Lordships observed as follows: “But that control cannot extend to the day-to-day administration of the institution. It is categorically stated in TMA Pai (cited supra at page 551, paragraph 72) that the State can regulate the method of selection and appointment of teachers after prescribing requisite qualification for the same. Independence for the selection of teachers among the qualified candidates is fundamental to the maintenance of the academic and administrative autonomy of an aided institution. The State can very well provide the basis qualification for teachers. Under the University Grants Commission Act, 1956, the University Grants Commission (UGC) has laid down qualifications to a teaching post in a University by passing Regulations. As per this Regulations UGC conducts National Educational Testing (NET) for determining teaching eligibility of candidates. UGC has also authorized accredited States to conduct State Level Eligibility Test (SLET). Only a person who has qualified NET or SLET will be eligible for appointment as a teacher in an aided institution. This is the required basic qualification of a teacher. Petitioner’s right to administer includes the right to appoint teachers of its choice among the NET/SLET qualified candidates.” In another decision reported in T.M.A. PAI FOUNDATION Vs. STATE OF KARNATAKA the larger Bench of the Apex Court held as follows: “Regulations can be framed governing service conditions for teaching and other staff for whom aid is provided by the State without interfering with overall administrative control of Management over the staff Government/University representative can be associated with the selection committee and the guidelines for selection can be laid down. In regard to un-aided minority educational institutions such regulations, which will ensure a check over unfair practices and general welfare, of teachers could be framed.” From the above decisions, it is clear that the Government can lay down the procedure and guidelines for selection of teaching staff. So also, the service conditions for teaching and other teaching staff for whom the aid is provided by the State regulations can be framed without interfering with the over all administrative control of the management. Therefore, any regulations or Government Order insofar as providing regulations which govern the service conditions for teaching and other staff are concerned, can be prescribed by the State Government without interfering with the over all