IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE NINETEENTH DAY OF MARCH TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION NO : 8087 of 1999 Between: 1 M.Siva Kumari W/o Pitcheswararao Peter Street, Pezzonipet, Vijayawada. 2 Sk.Ayesha Begum W/o M.Suleman Poornanadampet Lakshmanarao Street, Vijayawada. 3 B.Satyavathi W/o Sankar Rao Satyanarayanapuram Vijayawada. ..... PETITIONER(S) AND 1 The District Educational Officer Krishna at Machilipatnam. 2 Jack & Jill Primary School Rep. by its Secretary, RWO,Vijayawada. .....RESPONDENT(S) 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 to issue an appropriate writ, order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the 2nd respondent in terminating the services of the petitioners through the proceedings dt. 25/11/98 as illegal and ultravires to the provisions of Art. 14 of the Constitution of India besides violative of Mandatory provisiosn of section 79 of A.P. Education Act and the rules framed thereunder on the subject from time to time and pass such other order or orders as the Hon'ble Court may dem fit and proper. Counsel for the Petitioner:MR.V.S.R.ANJANEYALU Counsel for the Respondent No.: GP FOR EDUCATION The Court made the following : THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No. 8087 of 1999 ORDER: The order of the second respondent, in terminating the services of the petitioners vide proceedings dated 25.11.1998, is under challenge in this writ petition as being illegal and ultravires the provisions of Article 14 of the Constitution of India and in violation of the mandatory provisions of Section 79 of the A.P. Education Act. The Petitioners, three in number, were working in the second respondent school which, admittedly, has not been receiving any aid from the Government. Their services were terminated with effect from 25.11.1998, giving them one month’s salary from 26.11.1998 to 25.12.1998, on the ground that they had failed to maintain devotion to duty having indulged in malpractice while conducting the unit tests. Aggrieved by the action of the respondents in terminating their services, and to have the impugned orders set aside, the petitioners preferred an appeal under Section 80(1) of the A.P. Education Act. A copy of the appeal petition dated 12.12.1998 is also enclosed along with the writ petition. In the counter-affidavit filed by the respondents on 25.09.2006 it is stated that provisional recognition was given to the second respondent school without aid vide proceedings dated 04.12.1997 and, since the management had paid salaries from their own funds, the provisions of Section 79 of the A.P. Education Act would not apply. It is further stated that the management had terminated the services of these teachers as they had indulged in malpractice, while conducting the unit test, that the petitioners had failed to maintain devotion to duty and that one month’s salary in lieu of notice had already been paid by the management from out of their own funds. It is further stated that the petitioners have worked in posts which do not come under the provisions of grant in aid, and that the department has no authority to interfere in the administration of the school. It is also stated that the posts in which the petitioners were working had not been approved by the department as they are not selected by the staff selection committee as prescribed in G.O.Ms. No. 1 dated 01.01.1994. Respondents would state that the appeal, filed by the petitioners, had been disposed of by proceedings dated 17.07.2005 after the Deputy Educational Officer, Vijayawada had enquired into the matter and found the allegations made by the management to be true. Sri V.S.R. Anjaneyulu, Learned Counsel for the petitioner, would contend that, since the order of termination is on the alleged ground of malpractice, it casts a stigma and that the petitioner’s services could not have been terminated without an enquiry being held in this regard. Reference is made by the Learned Counsel to Section 79 of the A.P. Education Act to contend that the procedural safeguards thereunder have not been followed. On a query from the Court as to how a writ petition was maintainable against the second respondent, which is admittedly not an instrumentality of the State under Article 12 of the Constitution of India, Sri V.S.R. Anjaneyulu, learned Counsel for the petitioner would contend that, since the respondent had acted in violation of Section 79 of the A.P. Education Act, the jurisdiction under Article 226 of the Constitution of India could be invoked for non-compliance/violation of a statutory provision. Learned Counsel would contend that the mere fact that the petitioners had preferred an appeal would not disentitle them from invoking the jurisdiction of the High Court under Article 226 of the Constitution of India. Learned Counsel would contend that while the counter-affidavit makes a reference to the appeal having been rejected on 16.07.2005, it is completely silent as to whether or not a copy thereof was in fact served on the petitioners. With a view to ascertain whether or not a copy of the proceedings dated 16.07.2005, rejecting the appeal filed by the petitioners, had been communicated to them, Learned Government Pleader for School Education was directed by this Court, by order dated 27.02.2008, to produce the records. Today the Government Pleader for School Education has produced the records. She would submit that a copy of the proceedings dated 16.07.2005 was sent by post to the petitioners soon after they were issued. Under Section 79 of the A.P. Education Act, no teacher or a member of a private institution shall be dismissed or removed from service except after an enquiry is held. The first proviso thereunder requires prior approval of the authority also to be taken. Section 80(1) enables an employee who was dismissed, removed or reduced in rank prefer an appeal, against the order, to the competent authority within thirty days. Section 83 relates to retrenchment. I n Vasavi College of Engineering, Hyderabad Vs. A. Suryanaayana[1], a Division Bench of this Court held that, for violation of Sections 79 and 83 of the A.P. Education Act, a writ petition would lie. The fact, however, remains that the petitioners had preferred an appeal to the competent authority against the very same orders of termination which are impugned in this writ petition. While Sri V.S.R. Anjaneyulu, learned Counsel for the petitioners, would contend that it is merely a representation, a perusal of the appeal petition dated 12.12.1998 would disclose that the appeal had been preferred by the petitioners herein under Section 80 of the A.P. Education Act, 1982. It is well settled that where the petitioners have elected to invoke a statutory remedy of an appeal, they are precluded from simultaneously invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India for the very same relief and that two proceedings, for the very same relief, cannot be simultaneously maintained. Since the appeal has been dismissed subsequently by order dated 16.07.2005 the remedy, if any, for the petitioners is only to challenge the appellate order. It is well settled that, as a result of the confirmation or affirmance of the decision by the Appellate Authority, the original decision merges in the appellate decision and it is the appellate decision alone which is subsisting and is operative and capable of enforcement. (CIT Vs. Amritlal Bhagilal & Co.[2]; Madan Gopal Rungta Vs. Secretary to the Government of Orissa[3]; Somnath Sahu Vs. State of Orissa[4]). Since the appeal was disposed of on 16.07.2005, during the pendency of this writ petition, the impugned order, having merged with the order under appeal would no longer survive and it is only the validity of the appellate order which can be subjected to scrutiny on a valid challenge being made thereto. It is wholly unnecessary for this Court to examine whether the petitioners had, in fact, received a copy of the said proceedings dated 16.07.2005 since the petitioners have themselves filed W.P.M.P. No. 7513 of 2008 on 17.03.2008 seeking amendment of the prayer to include a challenge to the proceedings dated 16.07.2005. The affidavit filed in support of the said W.P.M.P. is silent as to when the petitioners had received a copy of the proceedings dated 16.07.2005. The very fact that no such averments is made in the affidavit, filed in support of the W.P.M.P, would support the contention of the respondents that a copy of the proceedings dated 16.07.2005 was, indeed, sent to the petitioners by post. In so far as W.P.M.P. No. 7513 of 2008 is concerned, the appellate order constitutes a distinct cause of action different from the original order of termination passed by the management of the private unaided school in the year 1998 and cannot be subjected to challenge by way of an amendment to the prayer in the earlier writ petition. Further, no reasons have been stated as to why the petitioners have not chosen to approach this Court earlier and to have waited till the writ petition was finally heard in part, in March, 2008. Viewed from any angle, I see no reason to now permit an amendment to the prayer in the writ petition filed in the year 1999. W.P.M.P. No. 7513 of 2008 is dismissed. Leaving it open to the petitioners, if they are so aggrieved, to question the order of the appellate order dated 16.07.2005 in appropriate proceedings, the writ petition is dismissed. However, in the circumstances, without costs. ____________________________ Date: 19.03.2008 RAMESH RANGANATHAN, J MRKR To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{ESWAR} [1] 1991(3) ALT 335 [2] 1959 SCR 713 [3] 1962 Supp 3 SCR 906 [4] (1969) 3 SCC 384