IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE SIXTEENTH DAY OF JULY TWO THOUSAND AND NINE PRESENT THE HON'BLE MRS JUSTICE T.MEENA KUMARI AND THE HON'BLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL NO : 571 of 2009 (Writ Appeal under Clause 15 of the Letters Patent against the Order dated 02/07/2008 in WP NO : 16053 OF 2004 on the file of the High Court.) Between: 1 The Govt. of Andhra Pradesh rep.by its Prl.Secretary, School Education Department., 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. ..... APPELLANTS AND 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, Prakash Nagar, 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 Dist. 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 Polimetla Caroline, D/o.P.S.S.Sundara Rao, R/o.H.No.5-65-8, Bordiepet, Guntur. 19 Lingamguntla Anithaluke, D/o.L.Heyet, R/o.H.No.4-16-21/1, Bharath pet, Guntur. 20 Gutta Jyothi Sree, D/o.Venkateswarlu, R/o.Motadaka Tadikonda Mandal, Guntur Dist. 21 Pondugula Srinivasa Reddy, S/o.Subba Reddy, R/o.Vipparla Palli, Rompicherla Mandal, Guntur Dist. 22 Prekki Madhavi Rani, 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 Suvatsala Kumari, W/o.N.Chandra Sheker, R/o.Naidupet, Guntur. 25 K.Christiana Jayanthimala, W/o.K.Ruben sunder 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 Pagadala Adilakshmi, D/o.P.Subba Reddy, 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.Henaravathi Rani, D/o.K.Vedavathi, R/o.H.No.5-96-11, Brodiepet, Guntur. 33 Chikkala Yesuratnam, 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.Babu Chandrakala, W/o.N.M.Joseph, R/o.Pandaripuram, Chilakaluri pet, Guntur Dist. 37 V.Vijaya Metilda, D/o.V.Manikya Rao, R/o.Christian pet, Rentachintala, Guntur Dist. 38 K.Vijaya Mani, W/o.P.Anand, R/o.Christian Health Centre, Macherla, Guntur Dist. 39 Chelli Samadanam, D/o.Ch.Honock, R/o.Punuru, Prakasam Dist. 40 Shaik Seshavali, R/o.Ediapadu Mandal, Guntur Dist. 41 The Chairperson, Board of Secondary Education Management of Andhra Evangelical, Lutheran Church, Guntur. .....RESPONDENTS Counsel for the Appellant:GP FOR SCHOOL EDUCATION Counsel for the Respondent No.: MR.K.RAMAMOHAN- MAHADEVA The Court made the following : JUDGMENT: (Per the Hon’ble Smt. Justice T.Meena Kumari ) Aggrieved by the order dated 02.07.2008 passed in W.P. No.16053 of 2004 by a learned Single Judge allowing the writ petition and directing the respondents to treat the petitioners as having been appointed to existing, clear, aided vacancies with effect from two months after the date of proposal and also entitled to all the consequential and incidental benefits, the respondents in the writ petition are in appeal. The respondents herein filed the above writ petition to declare the action of the third respondent – Regional Joint Director of School Education, Guntur, in withholding the approval of their selection to the vacant teaching posts pursuant to the interview held on 3.1.2004, under Board of Secondary Education, Management of Andhra Evangelical, Lutheran Church, Guntur – seventh respondent herein as illegal and consequently to approve their selection under the deeming provision without insisting for the approval by third respondent and to award other attendant benefits. The educational institutions administered by the respondent management are claimed to be the minority educational institutions and certain specified posts were admitted to grant-in-aid which were vacant for quite sometime but as constitution of Selection Committees for recruitment of these vacant aided posts was not sanctioned by the State Authorities, they could not be filled up, which led to the filing of WP No. 3953 of 2002 and the said writ petition was disposed of on 1.3.2002 with a direction to the respondents to consider the requisition of the respondent management. Pursuant to the said direction, the third respondent herein by order dated 2.11.2003 has permitted to fill up the specified vacant aided posts under the respondent management with Christian minority candidates with a specific direction that if any candidate is recruited in a vacancy belonging to the Scheduled Castes or Scheduled Tribes, the resultant vacancy shall be carried forward to the next point. Pursuant to the said order of the third respondent dated 2.11.2003, the fourth respondent issued an order dated 20.12.2003 constituting Staff Selection Committee with the Deputy Educational Officers, Sattenapalli and Guntur as the departmental nominees to conduct the test and interview on 3.1.2004. Accordingly, the said Staff Selection Committee has conducted written examination and held interviews and on the same day forwarded proposals to the third respondent with the names of the petitioners as selected candidates. Since nothing was heard from the third respondent, reminders dated 20.2.2004, 15.3.2004 and 15.5.2004 were issued and since the Competent Authority has not communicated its approval over the proposal of the Management even after lapse of considerable time and since the Management failed to issue appointment orders to the petitioners, even though they were selected, the petitioners filed the above writ petition inter alia contending that in terms of Rule 12(8) of the Rules, in case the proposal submitted by the management is not rejected within two months from the date of receipt of the proposals, they are deemed to have been approved and since the Competent Authority did not reject the proposals within the stipulated time, inspite of having received the reminders, the deeming provision under Rule 12(8) comes into operation and the third respondent has no power to decline the approval after expiry of the specified period of two months and, therefore, the order dated 27.9.2005 by which the proposal submitted by the management was rejected by the third respondent, is irrational, irrelevant and arbitrary and so also the consequential order passed by the fourth respondent rejecting to approve the selection of the petitioners, cannot stand to judicial scrutiny. The issuance of order dated 21.9.2002 by the first respondent permitting the second respondent to grant permission to fill up the vacant aided teaching posts under seventh respondent and the second respondent issuing order dated 26.9.2002 granting permission to the respondent management to fill up fifty aided teaching posts in various High Schools, Guntur district in terms of GO Ms. No. 75 Education Department dated 23.9.2002 is not in dispute. It is also not in dispute that on the basis of the proposals received from the fourth respondent, the third respondent issued orders dated 2.11.2003 permitting to fill 43 aided vacant teaching posts out of fifty permitted by the first respondent. It is case of the fourth respondent, as can be seen from the counter affidavit that there are certain defects in the selection made by the Staff Selection Committee, more particularly the rule of reservation for women as per the provisions of GO Ms. No. 41 Women Development and Child Welfare Department Dated 1.8.1996 and the women candidates who ranked on merit ought to have been showed against general vacancies which was not done, as a result of which two women candidates who are shown lower in merit, lost selection. It is case of the third respondent that certain allegations have been received regarding the selection and they were referred to the fourth respondent for enquiry by appointing an Enquiry Officer. It is also stated that individual marks list was not furnished, no list of candidates sponsored by the Employment Exchange, Guntur for all the posts was submitted, the paper notification calling for appointments from Scheduled Castes candidates for all the posts was not submitted, the reasons for not following the rule of reservation for women in terms of GO Ms. No. 41 dated 1.8.1996 is not referred to and, therefore, the proposals were returned to the fourth respondent by the third respondent directing re- examination and the selections were placed in abeyance. The case of the second respondent, as can be seen from the pleadings, is that the first respondent has amended Rule 12(8) removing the deemed approval clause and contends that the impugned order dated 27.9.2005 was issued by the third respondent in view of the said amendment. The learned Single Judge on exhaustive analysis of the rival contentions, found that in view of the deemed provision the selection of the petitioners is deemed to have been approved on the completion of two months from the date of receipt of the proposals by the third respondent and the petitioners shall be entitled to be treated as having been appointed in existing, clear aided vacancies with effect from such deemed date of approval with all consequential and incidental benefits and consequently, allowed the writ petition quashing the order dated 27.9.2005 issued by the third respondent. Aggrieved thereby, the above Writ Appeal is filed. It is not as if the posts other than those specified in the order dated 2.11.2003 issued by the third respondent were considered for selection. The fact that proposals were submitted by the Management to the third respondent for its approval is also not in dispute inasmuch as it is admitted by the third respondent in the counter. The core question around which the claim of the petitioners revolves is whether the selection of the petitioners pursuant to the interviews held on 3.1.2004 by the Staff Selection Committee is deemed to have been approved in view of the provisions of Rule 12(8) of the Rules or whether the order passed by the third respondent dated 27.9.2005 rejecting the approval is valid. For a better appraisal of the questions involved in this appeal, it is apt to extract Rule 12(8) of the Rules: “… All appointment 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 un-aided 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…” Thus a bare reading of the above Rule makes it abundantly clear that if the competent authority, having received the proposal from the management, does not accord approval for un-aided posts, within two months from the date of such receipt, the approval shall be deemed to have been granted. The issue that Rule 12(8) is applicable to even aided posts also, is no more res integra in view of the Division Bench judgment dated 23.11.1999 passed by this court in Writ Appeal Nos. 604 and 950 of 1999. As can be seen from facts, the selection was made by a duly constituted Staff Selection Committee after permission was accorded by the Competent Authority to fill up the posts and since the approval was not rejected within the stipulated time even after the management has reminded through letters dated 20.2.2004, 15.3.2004 and 15.5.2004 in compliance of the later part of Rule 12(8), the third respondent has no power to reject the proposal after the expiry of the period specified in the said rule. In such circumstances, the finding of the learned Single Judge that the amendment to Rule 12(8) does not extinguish or retrospectively invalidate the operation of the deeming provision which applies to the selection of the petitioners and that the selection of the petitioners is deemed to have been approved even prior to the issuance of amendment in GO Ms. No. 114 dated 30.8.2005, merit acceptance and cannot be disturbed. Insofar as the contention of the learned counsel for the appellants that rule of reservation according to the roster has to be followed even by Private Educational Institutions is concerned, in terms of Rule 12(6) of the Rules, a Division Bench of this Court in P.Thirumala Devi and another Vs. Government of Andhra Pradesh and another, has held that Rule 12 of the Rules is ultra vires the provisions of the parent Act i.e. The Andhra Pradesh Education Act, 1982, which was also confirmed by the Supreme Court in Civil Appeal Nos. 6575 and 6576 of 2004 by judgment dated 14.2.2007, preferred by the State, holding that Rule 12(6) of the Rules is beyond the scope of the Act and without amending the Act, no reservation can be provided for the Schedules Castes, Scheduled Tribes and Other Backward Classes. Insofar as the contention of the learned counsel for the appellants that the minority status of the institution has not been confirmed is concerned, apart from the relevant, consistent and cogent reasons assigned by the learned Single Judge, in terms of GO Ms. No. 1 Education (P.S.2) Department Dated 1.1.1994, any educational agency for which 2/3rd members belongs to religious/linguistic minority, it shall be treated as a minority institution. In the absence of any material placed before this court to show that the respondent Management is not a minority institution in view of the above GO and the list of members furnished by the Management, it has to be held that all the schools under their management shall be treated as minority institutions. That apart, in view of the findings of the Enquiry Officer & Director, A.P. Open Schools, Hyderabad, in Rc.No. 08/ENQ/DOR/ 2004 dated 17.9.2004, there cannot be any hesitation that the respondent management is not a minority institution, as defined in G.O. Ms. No. 1 dated 1.1.1994. It is contended that since the notification had invited only Christian candidates while the District Employment Exchange was asked for to sponsor Scheduled Caste and Scheduled Tribe candidates for filling up the posts, both of them does not go together and is a patent illegality, nullifying the process of selection. This contention is straightaway liable to be rejected in view of the judgments of this Court and the Supreme Court in Thirumala Devi’s case, which declare that the reservations in private educational institutions, be it a aided or an un-aided vacancy, are not applicable. Thus it is clear that the selection of the petitioners who have undergone the selection process for the specified posts by a duly constituted Staff Selection Committee, is deemed to have been approved under Rule 12(8), inasmuch as the respondent Management had s nt the proposals to the third respondent for approval on 3.1.2004 and having received the same, the third respondent did not approve within the specified time of two months of the receipt thereof and, therefore, the order dated 27.9.2005 passed by him rejecting the approval after two, is unsustainable. Consequently, the Writ Appeal is liable to be dismissed and accordingly dismissed confirming the order of the learned Single Judge. No order as to costs. _____________________ Justice T. Meena Kumari __________________ Justice Sanjay Kumar July 16, 2009 MAS