IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE ELEVENTH DAY OF AUGUST TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE L.NARASIMHA REDDY WRIT PETITION Nos.8399 of 2006 and 4599 of 2008 WRIT PETITION No.8399 of 2006 Between: Sree Sarda Vidya Nilayam, Elementrary and High School Ayodhya Nagar, Vijayawada, rep.by its Secretary and K.Chalapathi Rao ..... PETITIONER AND 1 The Government of Andhra Pradesh, rep.by its Secretary, Education (PS.2), Department, Secretariat, Hyderabad 2 The Commissioner & Director of school Education Government of Andhra Pradesh, Hyderabad 3 The Regional Joint Director of School Education Kakinada 4 The District Educational officer, krishna District at Machilipatnam .....RESPONDENTS 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 in the nature of writ of mandamus or any other appropriate writ direction or order declaring the proceedings Rc.No.3197/B1/02 dated 31.3.2006 of the Regional Joint Director of School Education, Kakinada, the 3rd respondent herein as illegal, and void and direct the Regional Joint Director of School Education, Kakinada, respondent No.3 and the District Educational oﬃcer, Respondent No.4 to approve the appointments made by the petitioner school on 10.6.2003 to four teaching posts viz School Assistant-1, Secondary Grade Teachers-2 (One for primary school and one for High School) Telugu pandit Grade-I, and three non- teaching posts viz., Junior Assistant-1 Record Assistant-1 and attender 1 and release the salaries to the said appointments w.e.f.12/6/2003 when they join service. Counsel for the Petitioner:MR.P.KAMLAKAR Counsel for the Respondents: GP FOR SCHOOL EDUCATION WRIT PETITION NO : 4599 of 2008 Between: 1 B.Usha Rani D/o.B.Shyamsundar Reddy Sree Sarada Vidyanilayam High School, Ayodyanagar, Vijayawada. 2 N.Venkata Ramana Kumar S/o.Gopalakrishna Murthy Sree Sarada Vidyanilayam High School, Ayodyanagar, Vijayawada. 3 Smt.Bharata Padmaja D/o.Madhava Rao Sree Sarada Vidyanilayam High School, Ayodyanagar, Vijayawada. 4 V.Rajasekhar S/o.Venkata Bhanu Murthy Sree Sarada Vidyanilayam High School, Ayodyanagar, Vijayawada. 5 S.Anuradha D/o.Bhyrava Murthy Sree Sarada Vidyanilayam High School, Ayodyanagar, Vijayawada. 6 G.Srinivas S/o.Venkataswamy Sree Sarada Vidyanilayam High School, Ayodyanagar, Vijayawada. ..... PETITIONERS AND 1 State of Andhra Pradesh, rep. by the Secretary to Government, Education Department, A.P. Secretariat, Hyderabad. 2 The Commissioner & Director of School Education, Andhra Pradesh, Hyderabad. 3 The REgional Joint Director of School Education, Kakinada, East Godavari District. 4 The District Educational Officer, Krishna District, at Machilipatnam. 5 Sree Sarada Vidyanilayam High School, Ayodhyanagar, Vijayawada, rep. by its Correspondent. .....RESPONDENTS 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, in the nature of a Writ of Mandamus or any other appropriate Writ direction or order directing the respondents 1 to 4 herein to forthwith release and pay the salaries of the petitioners from 27-07-2004 to 28-02-2008 and continue to pay the same regularly every month as ordered in Proceedings Rc.No.3197/B1/2002; dated 25.3.2007 of the Regional Joint Director of School Education, Kakinada, the 3rd respondent herein; and pass such further or other orders. Counsel for the Petitioner:MR.P.KAMLAKAR Counsel for the Respondents: GP FOR SCHOOL EDUCATION The Court made the following : COMMON ORDER: In these two Writ Petitions, the proceedings, dated 31.03.2006, issued by the Regional Joint Director of School Education, Kakinada (hereinafter referred to as ‘the third respondent’), are challenged. While the petitioner in W.P.No.8399 of 2006 is a school, those in W.P.No.4599 of 2008 are the Teachers of the said school (for short ‘the Teachers’). Some of the posts in the school are admitted to Grant- in-aid, while others are, out side grant. The management submitted proposals to the District Educational Oﬃcer, Krishna, the fourth respondent herein, on 19.11.2001, with a request to accord permission for ﬁlling certain posts. Some uncertainty prevailed, as to the application of rules of reservation. An interim order was passed on 02.12.2002, by this Court in one of the writ petitions ﬁled by certain institutions, permitting the private educational institutions to ﬁll vacancies up to 50%, without following the rules of reservation. The school notiﬁed the vacancies on 30.04.2003 and correspondence ensued between the school and the department, in the matter of nominating experts etc. Ultimately, the school selected the Teachers against the un-aided vacancies. It submitted proposals to the respondents 3 and 4, for according approval. Even while the proposals were pending, the Government issued orders in G.O.Ms.Nos.96 and 103, dated 25.07.2005 and 03.11.2005, respectively, transferring the three posts of Teachers and three posts of non-teaching staﬀ, to the petitioner school. The petitioner made request for absorption of the Teachers selected by it, against the sanctioned vacancies. It was in this context that, the third respondent passed the impugned order, rejecting the proposals. As many as eight reasons were mentioned. They range from the uncertainty prevailed about the application of rules of reservation, to the default committed on the part of the petitioner, in following the procedure prescribed under G.O.Ms.No.1, dated 01.01.1994. Reference was also made to memo, dated 20.10.2004, whereunder the Government imposed ban on ﬁlling up of existing vacancies. Another reason was that there is a necessity for only one School Assistant and one SGT, apart from three non-teaching staff. The petitioner contends that the reasons mentioned in the impugned order are untenable, particularly in view of the judgment rendered by the Supreme Court, in various issues. It is also stated that the ban referable to the memo, dated 20.10.2004, was treated as not applicable by the respondents themselves, inasmuch as one Teacher selected by them, was approved against an aided vacancy, vide G.O.Ms.No.71, dated 30.05.2008. The respondents ﬁled counter-aﬃdavit together, with supporting documents. It is stated that the selection of Teachers by the school is contrary to the prescribed rules and norms and that the third respondent had furnished cogent reasons in support of his conclusions. It is represented that, in view of the evaluation of work load, there is no necessity to ﬁll the existing vacancies. Other grounds are also urged. Heard Sri E.Manohar Rao, learned Senior Counsel appearing on behalf of the petitioner, and learned Government Pleader for School Education. The controversy, as regards the appointment of unaided Teachers in the school as well as the attempt to absorb them against aided vacancies, is continuing for the last few years. After hearing the learned counsel for the parties, at length, this Court feels that a lot of uncertainty prevailed in the matter, be it, as regards, the application of rules of reservation, the power of the Government to eﬀect rationalization of Teachers among diﬀerent aided schools, the obligation to notify the vacancy through employment exchange, and the operation of ban on appointment etc. On his part, the third respondent stated the following reasons in the impugned order for rejecting the claim submitted by the petitioner. “a) The selections did not take place between 02.12.2002 (date of interim order in W.P.Nos.20991 of 2002 and W.P.No.22103 of 2002 and 16.12.2002 i.e. date of stay order of the Hon’ble Supreme Court in SLP No.24269 and 24270 of 2002. As Supreme Court granted stay of the order in W.P.No.1519 of 1999 on 16.12.2002, Rule 12(6) stood restored from that date. Therefore, Reservations by communal rotation roster have to be followed from 16.12.2002 onwards. b) The management of the school has neither furnished the details of its vacancies and the posts it has ﬁlled up in the 50% vacancies before the Hon’ble High Court in terms of the interim order dated 02.12.2002 in W.P.No.20991 of 2002 and W.P.No.22103 of 2002. c) The management has selected and appointed 6 teaching staﬀ and 3 non-teaching staﬀ as Unaided posts without observing the A.P. Educational Institutions (Establishment, Recognition, Administration and Control of Schools under the private Managements) Rules, 1993 issued in G.O.Ms.No.1 Education, 01.01.94. d) The management has not notiﬁed the vacancies to the employment exchange, which is violation of Rule 12(4) of G.O.Ms.No.1 Education, dated 01.01.1994. e) The Management has not followed the communal rotation roster and ﬁlled up the posts in violation of Rule 12(6) of G.O.Ms.No.1 Education, dated 01.01.1994. f) The management of the school has not followed the provisions of G.O.Ms.No.1 dated 01.01.1994 in respect of the selections whose approval is sought. g) In view of the above ban Memo.No.12080/COSE/A2/2004-4, dated 20.10.2004 there can be no creation of new posts and the existing vacant posts too are not to be filled up. h) In the rationalization, it is found that there is need to ﬁll only one school Assistant, one S.G.T. and three non-teaching staﬀ for which the man power was provided by the respondent though the petitioner requested for ﬁlling up of more than the need.” A perusal of these reasons discloses that while some of them are traceable to the pendency of proceedings before the Courts or the orders passed therein, others relate to the implementation of diﬀerent clauses of Rule 2 of G.O.Ms.No.1, dated 01.01.1994. Whatever may have been the justiﬁcation for the third respondent in passing the impugned order, in the year 2006, the fact now remains that on several aspects, the uncertainty has ceased to exist and there is a substantial change in the law, that applies to the facts and circumstances of the case. For instance, a ﬁnal pronouncement had emerged from the Supreme Court to the eﬀect that Rule 12(6) of the Andhra Pradesh Educational Institutions (Establishment, Recognition, Administration and Control of Schools under Private Management) Rules, 1996, which provides for reservation, in appointment against aided vacancies in private educational institutions, is contrary to law. Similarly, this Court held that the process of rationalization cannot be implemented or eﬀected vis-à-vis the aided institutions. So far as the ban imposed vide memo, dated 20.10.2004 is concerned, the Government itself treated it as not absolute and subsequent to the said memo, the Government issued orders approving appointment against aided vacancies in private educational institutions. One such instance is available in the petitioner school itself. This Court is of the view in the light of these changed circumstances that the matter needs to be given a fresh look. In case, respondents 3 and 4 need any further information or clariﬁcation, they can require the petitioner to furnish it within a stipulated time. Inasmuch as the school is imparting education in Telugu Medium and it is said to be in dearth of Teachers, the matter cannot brook any further delay. Hence, W.P.Nos.8399 of 2006 and 4599 of 2008 are allowed, setting aside the impugned order and directing the third respondent to pass fresh orders, in accordance with law, as it obtains now. In case, respondents 3 and 4 need any further information from the petitioner, it shall be open to them to require him to furnish it within a speciﬁed time. This exercise shall be completed within a period of two months from the date of receipt of a copy of this order. There shall be no order as to costs. ____________________ Dt.11.08.2008 L.NARASIMHA REDDY, J GJ