IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY FOURTH DAY OF NOVEMBER TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION No.35295 OF 1998 Between: Sri Malayala Swamy Sanskrit Upper Primary School, Uyyalapalli Village, Kaluvay Mandal, Nellore Distrct. .... PETITIONER AND Government of Andhra Pradesh, rep. by its Secretgary, Education Department, Secretariat, Hyderabad and others ....RESPONDENTS The Court made the following: THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION No.35295 OF 1998 ORDER: This writ petition has been instituted by the Correspondent of Sri Malayala Swamy Sanskrit Upper Primary School, Uyyalapalli Village, Kaluvay Mandal, Nellore District, calling in question, in a sense, the rejection of the case of the writ petitioner school for releasing grant-in- aid for nine posts for the period prior to 01.11.1989. 2. It is stated in the affidavit filed in support of the above writ petition that the writ petitioner school is an oriental upper primary school, teaching students from classes 1 to 7. It had ten teachers; one B.Ed. Assistant, five Secondary Grade Teachers, two Grade-II Sanskrit Pandits, one Grade-I Telugu Pandit and one Craft Teacher. The State Government has taken a policy decision and announced the same through their G.O.Ms.No.238, dated 27.05.1986 to admit to grant-in-aid all the schools in existence as on 01.09.1985, which are opened with the permission of the competent authority and have completed the requisite periods of existence as spelt out in paragraph No.3 of the said Government Order. It was further stated that the aid shall be given with effect from 01.09.1985 subject to fulfilling condition Nos.1 to 8 listed therein. 3. The case of the petitioner is that the school was established in the year 1982/1983 academic session with the prior permission of the competent authority and it is in existence as on 01.09.1985 and it had satisfied all the conditions specified in paragraph No.4 of G.O.Ms.No.238, dated 27.05.1986 and that the committee constituted for the purpose of determining the eligibility for payment of grant-in-aid has infact recommended the case of the writ petitioner school for payment of grant-in-aid. But, however, in the mean time, the legislature has enacted the Andhra Pradesh Private Educational Institutions Grant- in-aid (Regulation Act) 1988, Act 22 of 1988 (henceforth referred to as Act for brevity) regulating the grant-in-aid to various schools, in terms of which Act the school in question has been admitted to grant-in-aid insofar as nine posts of teachers are concerned and that too with effect from 01.11.1989 only and it had not considered releasing the grant-in- aid for the previous period. Hence, the present writ petition has been instituted. 4. The claim of the petitioner has been resisted by the State. It is contended that the conditions specified by the State Government in their G.O.Ms.No.238, dated 27.05.1986 have not been complied with by the school in question and hence the question of releasing the grant-in-aid in its favour for the period prior to 01.11.1989 would not arise. 5. None appeared for the writ petitioner. I have heard the learned Assistant Government Pleader for School Education. 6. It is contended by the learned Assistant Government Pleader that in terms of the policy decision taken by the State Government through their G.O.Ms.No.238, (Education Department), dated 27.05.1986, the writ petitioner school is entitled to be released the grant-in-aid only with effect from 01.11.1989, though the committee constituted by the State Governments has made its recommendations earlier in point of time, for releasing such a grant-in-aid in its favour, inasmuch as the school has not complied with all the requirements spelt out in the policy of State Government contained in G.O.Ms.No.238, dated 27.05.1986. 7. It will be relevant to notice that the school in question has been opened with prior permission of the competent authority during the academic session 1982/1983, but, however, in paragraph No.3 of the policy decision announced in G.O.Ms.No.238 (Education Department), dated 27.05.1986, the State Government has made its decision clear in the following words” “Government have considered it appropriate to sanction grant-in-aid to include schools started or upgraded after 01.04.1977 with the permission of the competent authority and which were recommended and were in existence as on 01.09.1985 in a phased manner, till all such institutions are admitted to grant- in-aid, subject to the completion of a minimum period of existence that is five years in respect of boys schools including co-educations schools, 3 years in respect of girl schools and 4 years in respect of oriental schools.” 8. It is therefore clear that the State Government has proposed to consider releasing grant-in-aid in respect of such schools which have been started after 01.04.1977 with the prior permission of the competent authority provided they have completed the minimum periods of existence spelt out in paragraph No.3 of G.O.Ms.No.238, dated 27.05.1986. In respect of oriental schools four years period has been specified. Therefore, till the academic session 86/87 begins the petitioner school would not have completed 4 years period for it to become eligible to be admitted to grant-in-aid. Though the writ petitioner may have complied with and satisfied all the requirements spelt out in paragraph No.4 of the aforesaid Government Order, to my mind therefore it is clear that the writ petitioner school would not have become entitled to receive grant-in-aid with effect from 01.06.1985 as prayed for in the writ petition. At best it would be entitled to seek to be admitted to grant-in-aid with effect from 01.06.1986, by which time it would have completed 4 years period. 9. The question relating to the effect of Act 22 of 1988 on the issue relating to arrears of payment of grant-in-aid for the period prior to 01.11.1989 has in fact engaged the attention of a Division Bench of this Court in the case of Government of Andhra Pradesh and others Vs. G.V.K.Girls High School, Tadikonda[1]. The Division Bench has concluded the issue in the following words: “When we look to the amendment Act with the above principle in mind, we have no hesitation in holding that the enactment has in no way attempted to remove the defect in the earlier Government Orders or the enactment which has rendered its executive action invalid and the Court has found fault on that score. It is out and out a legislation to nullify the instant judgment or any judgment, decree or order of any Court or Authority by a declaration in the shape of a decree of the Legislature. The same, in our view, cannot be sustained and has to be held to be invalid and beyond the competence of the State Legislature. Learned Advocate-General has addressed it at length on the desirability of the Court entering into the financial aspect of the grant and determining the issue of entitlement of Grant-in-Aid by the petitioner- respondent. We, however, do not find anything of substance in what is contended against the finding recorded by the learned single Judge. The law on the subject is well settled that Grants-in-Aid cannot be denied on ground of paucity of funds (See State of Maharashtra v. Manubai Pragaji Vashi (11) (1995) 5 SCC 730 and State of H.P. Recognised & Aided Schools Managing Committees (12) (1995) 4 SCC 507.” 10. The State carried the matter in Appeal to Supreme Court against this Judgment. The Supreme Court in Government of Andhra Pradesh and others V. G.V.K. Girls High School[2] concluded the issue: “Now, after complaints were received, the grant was kept in abeyance and the cases of the respondent and others were inquired into under Section 46(2). Initially, the Government constituted a Committee in GO 220 dated 24.02.88. Later by Act 22/88, the Committee was given statutory status to go into complaints. It will be noticed that the right to receive grant-in-aid for the back years i.e., from 22.07.85 was declared under Act 22/88, contingent upon the recommendation of the Committee. This is clear from Section 3(2). It states that if the Committee recommends favourable, then the grant is to be released in favour of an institutition, “from the date upon which it satisfies all the conditions for admission to grant-in-aid specified in the Andhra Pradesh Education Act, 1982 and the Rules made thereunder, or the grant in aid code or orders or other instructions issued by the Government from time to time”. This clause, in our view, therefore directs release of grant-in-aid from the date upon which the school satisfies the eligibility conditions. As already stated sub-clause (3) of Section 1 made Act 22/88 retrospective from 22.07.85. Hence it is as if the Committee constituted under Act 22/88 was there from 1985. In our view, once the Committee gave its clearance, the decision would therefore be effective from 22.07.85 in respect of all the back years from dates anterior to the passing of Act 22/88, and the school would be entitled to release of grant-in-aid from the date on which it satisfies the conditions for receiving grant-in-aid. It is contended for the State of Andhra Pradesh that Section 3(2) is only prospective. It is true Section 3 does not expressly say that the recommendation will be retro-active but from the language of Section 3(2) referred to above and also because sub-section 3 of Section 1 says that the Act “be deemed to have come into force on the 22nd July, 1985”, in our view, the right is retrospectively affirmed for the back years. In other words, the Committee’s recommendations as to compliance with conditions during various years from 1985 though made after 1988 were to be treated as in existence from various dates after 22.07.1385 and if the institution satisfied the conditions of the Act 1/1982 and also conditions laid down in other Gos in the previous years, the Committee’s recommendation in favour of any school would be retroactive and will apply to those back years. That the right to arrears is affirmed by Section 3 is also clear from Section 5 which relates to an adverse recommendation of the Committee, in cases where the Committee accepted complaints, Section 5 requires refund of amounts already paid. Thus, Act 22/88 provided for payment of arrears or for refund of amounts paid. That was the purpose in making the provisions of that Act retrospective w.e.f. 22.07.1985. In our view, these provisions of the Act, therefore, clearly conferred a statutory right on the writ petitioners to receive the grant-in-aid right from 22.07.85 onwards in the various years in which they satisfied the conditions. The right to arrears thus flows from the statues and the Committee’s recommendations and not from any Government Orders. In other words, the basic right to receive arrears does not stem from any Government Order in respect of the schools enumerated in GO 326 (ed.) dated 17.10.89 read with GO 178 (Ed.) dated 23.07.90. The right stems from Act 1/82 and Act 22/88 and the findings of the Committee. This aspect becomes important when we come to deal with Act 34/95 and as to whether it has removed the basis of the judgment of the learned Single Judge.” 11. Thus, finality has been brought about to this issue by the Judgment rendered by the Supreme Court holding that the right to receive grant-in-aid has flowed both from Andhra Pradesh Education Act, 1988, as well as the policy decision of the State Government contained in their G.O.Ms.No.238 and also through Act 22 of 1988. 12. Hence, the case of the writ petitioner school is liable to be reconsidered for release of the grant-in-aid for the period prior to 01.11.1989. It is not in dispute that the Committee constituted by the State Government for assessing the suitability and eligibility of the schools for admitting them to grant-in-aid has made its recommendation for admitting nine posts of teachers in the writ petitioner school. However, the recommendations of the said Committee have been acted upon by giving effect only from 01.11.1989 as was noticed supra. The school in question has completed four years of existence in terms of paragraph No.3 of G.O.Ms.No.238, dated 27.05.1986 by 01.06.1986. Therefore, the school ought to have been admitted to grant-in-aid with effect from 01.06.1986 instead of from 01.11.1989. It will be significant to notice that unless and until the posts of teachers are admitted to grant-in-aid they will not get entitled to be paid pension and other terminal benefits by the State Government of the service rendered by such teachers from the date the post held by them so admitted to grant- in-aid alone will count for their post retiremental benefits. Therefore, admitting the post of teachers in the petitioner school with effect from 01.06.1986 has a significant role to play. 13. In these circumstances, I consider it appropriate to direct the respondents to reconsider the entire matter and based upon the recommendations made by the inspection committee, and to take a decision for admitting the nine posts of teachers under it with effect from 01.06.1986 and communicate such a decision to the writ petitioner school within a maximum period of six months from today. If the committee has already made a recommendation in its favour based upon which the nine posts of teachers were admitted to grant-in-aid with effect from 01.11.1989 then such posts should be reconsidered for being admitted to grant-in-aid with effect from 01.06.1986 and the arrears paid to such teachers for the period between 01.06.1986 to 01.11.1989 within a maximum period of six months from the date of the decision taken by the respondents in that respect. 14. The Writ Petition stands allowed to the extends indicated supra. No costs. _________________________________ (NOOTY RAMAMOHANA RAO, J) November 24, 2009 MD [1] 1996 (3) ALD 1098 (D.B.) [2] 2000 (8) SCC 370