THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION NO. 27004 OF 2003 AND CONTEMPT CASE NO. 1385 of 2005 W.P.NO. 27004 OF 2003 Between: M. Prasada Rao and 4 others. … Petitioners and The State of A.P. rep.,by its Secretary, Education Department, Secretariat Buildings, Hyderabad and 6 others. … Respondents. THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION NO. 27004 OF 2003 AND CONTEMPT CASE NO. 1385 of 2005 ORDER: W.P.No. 27004 of 2003 is filed seeking a declaration that the order of the 3rd respondent is arbitrary, discriminatory and illegal and for a consequential direction to the respondents to approve appointment of the petitioners as secondary grade teachers, from the date of their selection, and for payment of monetary benefits. This Court, by order in W.P.M.P.No. 34201 of 2003 in W.P.No. 27004 of 2003 dated 29.12.2003, directed the respondents to pay salaries to the petitioners, as per their eligibility, if they were working in aided vacancies. Alleging wilful and deliberate violation of the orders passed by this Court, in W.P.M.P.No. 34201 of 2003 in W.P.No. 27004 of 2003 dated 29.12.2003, C.C. No. 1385 of 2005 was filed. Both the writ petition and the contempt case were heard together and are now disposed of by a common order. Brief facts, to the extent necessary, are that the petitioners, (five in number), are working as Secondary Grade teachers in respondent 4 to 7 schools respectively. The 3rd respondent granted permission to the respondents’ school to fill up vacancies, in the posts of aided secondary grade teachers, as per the rules notified in G.O.Ms. No. 1, Education Department dated 01.01.1994, vide proceedings dated 29.11.1996. The respondent schools advertised in the Newspapers, on 03.12.1996, inviting applications from qualified candidates. The petitioners applied pursuant to the said advertisement. The 4th respondent school is said to have constituted a selection committee and to have conducted a recruitment test on 18.02.1997 wherein the 1st and 2nd petitioners were selected. According to the petitioners, the selection list was sent for approval, to the 3rd respondent, through the Mandal Education Officer, Kurapam. The 4th respondent asked the petitioners to join duty, pending approval of their selection by the competent authority and, on the petitioners expressing their willingness, appointment order dated 21.02.1997 was issued in their favour. The 5th respondent school is said to have conducted a recruitment test on 10.02.1997 wherein the 3rd petitioner was selected, by the selection committee, on the basis of his merit. As the post was vacant and the need, for providing primary and secondary school education to the tribal children, immediate, the respondent school managements are said to have sent the selection list for approval to the 3rd respondent, through the Mandal Educational Officer, Kurupam. The 3rd petitioner, on being requested to join duty subject to approval, joined duty, pursuant to appointment orders being issued in proceedings in R.C. No. 4 of 1997 dated 15.02.1997, on 18.02.1997. Similarly the 6th respondent is said to have conducted recruitment, according to the 1993 Rules, on 18.02.1997. The Selection Committee selected the 4th petitioner and the 6th respondent issued appointment orders dated 20.02.1997 subject to the approval of the 3rd respondent. Accordingly the 4th petitioner joined duty on 26.02.1997. The selection list was sent for approval, of the 3rd respondent, through the mandal educational officer, Kurupam. The 7th respondent school also constituted a selection committee as per the 1993 Recruitment Rules wherein the 5th petitioner was selected by the Selection Committee on 15.02.1997. The school management is said to have sent the selection list, for approval of the 3rd respondent, through the Mandal Educational Officer, Kurupam. Pending approval, the 7th respondent issued appointment orders to the 5th petitioner, vide proceedings dated 20.02.1997, pursuant to which the 5th respondent joined duty on 23.02.1997. Petitioners would state that as there was inordinate delay in granting approval, they had persuaded the school management to seek approval of their appointment and to obtain sanction for payment of their salaries. The respondent schools managements sent reminders seeking approval of the appointments made by them. The 3rd respondent passed orders on 03.04.2002 stating that, vide letter dated 28.03.2001, they had already instructed all the managements to stop selections. Petitioners would contend that they were selected by the selection committee in February 1997 and were appointed subject to approval, that the order dated 03.04.2002 of the 3rd respondent was inconsistent with the permission given by him earlier. Petitioners had challenged the earlier order, of the 3rd respondent dated 03.04.2002, in several writ petitions, and this Court set aside the order in W.P.No. 6332 of 2003 dated 10.04.2003 and remitted the matter back to the 3rd respondent for fresh consideration. The judgment in W.P.No. 6332 of 2003 dated 10.04.2003 was followed in W.P.No. 6733 of 2003, 6735 of 2003 and 6771 of 2003. Consequent thereupon the 3rd respondent passed the impugned order dated 16.06.2003 holding that, since the management had not followed the rules and regulations and the correct selection procedure as per G.O.Ms.No. 1 dated 01.01.1994 and had appointed teachers at their own wish and will, the department was not responsible for the irregular selection of these teachers in aided institutions. Petitioners would submit that the impugned order dated 16.06.2003 is inconsistent with the statutory rules i.e., A.P. Educational Institutions (Establishment, Recognition, Administration and control of schools under private Management) Rules, 1993 more particularly Rule 12 thereof which relates to recruitment of staff. According to the petitioners since the 3rd respondent gave permission to fill up the vacant aided secondary grade teacher posts, the school managements had constituted staff selection committees and had informed the same to the 3rd respondent, a recruitment notification was issued on 03.12.1996, pursuant to the permission given on 29.11.1996, that on both the dates of grant of permission and the notification, 33% reservation in favour of women was not required to be provided. Petitioners would submit that, in any event, the requirement of providing 33% reservation for women would not apply as only one post each was filled up in the respondent schools, except in the 4th respondent school, where two posts were filled up. With regards the other objection that the official nominee did not participate in the selection process, petitioners would submit that Rule 12(5) provides that the selection shall not be vitiated only on the ground that the official nominee was not present in the selection committee. Petitioners would deny that the 3rd respondent was not informed about the selection. Petitioners would submit that proposals were sent through proper channel and that the Mandal Educational Officer was periodically affixing his signature in the visitors book. Petitioners would submit that the objection, that appointment should be made only after grant of approval, is without basis. According to the petitioners, the impugned order was passed without application of mind and in violation of the rules. Petitioners would contend that they have been working in aided posts since February 1997, the Management was not making any effort to obtain sanction for payment of their salaries on the plea that the appointments were subject to approval of the 3rd respondent, resulting in their being forced to live in penury. According to the petitioners, since the respondent schools management had followed the rules in appointing them it was not open to the 3rd respondent to shift its stand each time and to reject grant of approval of their appointment. Petitioners would submit that they are fully qualified to be appointed to the posts of secondary grade teachers and that they have been discharging their duties to the utmost satisfaction of the authorities since 1997. In the counter-affidavit, filed on behalf of respondents 1 to 3, the 3rd respondent would state that the respondents 4 to 7 schools had failed to follow the procedure prescribed under Rule 12, of the rules notified in G.O.Ms.No. 1 dated 01.01.1994, as directed by the District educational officer vide proceedings dated 29.11.1996 wherein it was made clear that reservation of 33.33% had to be followed by the Management. Respondents would submit that the school managements had also failed to follow the communal roster, as contemplated under Rule 12(6), and the petitioners were therefore not entitled to the relief sought for in the writ petition. According to the 3rd respondent, the petitioners were appointed by the school managements without following the procedure prescribed under Rule 12, more particularly sub-Rule 5 thereof, as notified in G.O.Ms.No. 1 dated 01.01.1994. It is contended that aided institutions, while constituting selection committees, must include a nominee of the District Educational Officer, as one of the members. However the management of respondents 4 to 7 schools had failed to follow the said rules and had neither intimated nor requested the departmental nominee to attend the selection process. The school management had also failed to comply with the rules of reservation though they were so directed in proceedings dated 29.11.1996. According to the 3rd respondent, though respondents 4 to 7 did not take any steps to constitute a staff selection committee in accordance with Rule 12, of G.O.Ms. No.1, they had submitted proposals six years thereafter on 24.03.2002, 26.03.2002, 01.03.2002 and 01.03.2002 respectively seeking approval of the appointments, made in violation of the rules, earlier. The 3rd respondent would state that according to Rule 12(8), the managements were required to communicate the list of selected candidates within 30 days from the date of completion of the selection process whereas in the instant case the same was intimated after a lapse of nearly six years, that too without following the selection procedure. The 3rd respondent would refer to rule 12(8) which requires appointments made, in aided or un-aided vacancies, to be approved by the competent authority, and submit that, in the instant case, no such approval could be granted by the competent authority as the managements had failed to follow the rules while selecting the petitioners herein. Reference is made to the order of this Court, in W.P.No. 6771 of 2003 and batch, wherein the earlier orders issued by the respondents on 03.04.2002 was set aside and the matter remanded to the 3rd respondent, (District Educational Officer, Vizainagaram), for fresh consideration duly taking into account the relevant facts. The 3rd respondent was directed, by order dated 10.04.2003, to pass appropriate orders within four weeks from the date of receipt of the order. It is stated that, pursuant to the orders of this Court, the District Educational Officer, Vizianagaram had examined the case in detail and had passed the impugned proceedings dated 16.06.2003, which was also communicated to the petitioners herein. In the counter-affidavit, filed on behalf of respondents 4 to 7, it is stated that the petitioners had been working as Secondary Grade Teachers in respondents 4 to 7 schools since February 1997, that respondents 4 to 7 are aided schools established to impart free education to children in tribal villages, that the District Educational Officer, by common order dated 29.11.1996, had granted them permission to make recruitment to vacant aided secondary grade teachers posts and, consequent thereto, respondents 4 to 7 had advertised the vacancies in the Newspapers and had addressed the District Employment Exchange, Vizianagaram to sponsor eligible candidates. After receipt of the list from the District Employment Exchange and other applications from other individuals, the respondent schools had constituted their respective staff selection committees, as per Rule 13 of the G.O.Ms. No. 1, and had requested the 3rd respondent to send his nominee to participate in the selection process. Despite their request the 3rd respondent did not send his nominee on the scheduled date. Respondents 4 to 7 would state that their schools are situated in interior tribal areas and that all the school children are tribals. Among the two sanctioned posts in the 4th respondent school, both are said to be vacant since 1993. One among the three posts in the 5th respondent school is stated to have been vacant since 01.07.1994. The single post in the 6th respondent school is said to be vacant from June 1994, and the post in the 7th respondent school was vacant since 01.07.1992. Since the 3rd respondent had not granted permission, despite a long lapse of time, the respondent school managements felt the dire-necessity to fill up the post and as such proceeded with the selection process, despite the absence of the official nominee, and selected the petitioners on the basis of merit from among the candidates who appeared for the selection. It is stated that all the respondent schools are located in interior tribal areas unconnected by roads, the number of houses in all the villages is less than 50, that no woman candidate had submitted any application pursuant to the notification and even the woman candidates, who were sponsored by the District Employment Exchange, did not attend the recruitment test. Respondents 4 to 7 would state that the recruitment process took place prior to the amendment to Rule-22, of the A.P. State & Subordinate Service Rules, vide G.O.Ms.No. 65, dated 15.02.1997. According to respondents 4 to 7, they had sent the appointment orders of the petitioners for approval of the 3rd respondent as per Rule 12 and had also requested the petitioners to join duty subject to approval of their selections. Respondents 4 to 7 would state that the petitioners have been working in their schools, that the respondent school managements were running schools in tribal areas without collecting any fee and that, unless the government released salaries, they were not in a position to pay salaries to the teachers. It is stated that the services of these teachers are completely utilized in the schools for tribal children and, but for the appointments made in 1997, all the schools would have been closed for want of teachers. It is stated that the Mandal Educational Officer used to make regular visits to the schools and had taken note of the services of the petitioners in the respective schools and was well aware that they had been pursuing with the authorities to approve the appointments and release salaries. Respondents 4 to 7 would state that, to their utter surprise, the 3rd respondent had passed the order dated 03.04.2002 rejecting approval on the ground that they had earlier informed the respondent schools, vide proceedings dated 23.03.2001, to stop selections when in fact they had completed the selection in February 1997 itself and had submitted proposals for approval immediately thereafter. According to the respondents, a plain reading of the proceedings dated 23.03.2001 would show that it was addressed to other schools who had sought permission in the year 2000. Respondent 4 to 7 schools would submit that the said order dated 23.03.2001 was quashed by this Court, that appointment of the petitioners was made in accordance with the procedure prescribed in G.O.Ms.No. 1 dated 01.01.1994, that the petitioners were informed in the appointment order itself that they would be paid salaries only after grant-in-aid was released and that they were constrained to proceed with the recruitment, without the official nominee, in view of their dire-necessities and because of the indifferent attitude of the authorities to extend educational support in tribal areas where there were no government schools. According to respondents 4 to 7, if they had not proceeded with the selection process there would have been no literacy among the tribal children, during the period 1997-2004, and since there were no government schools or other schools within a radius of 3 – 5 kilometres, recognition of their schools would also have been withdrawn. Respondents 4 to 7 would contend that absence of the official nominee is no impediment, for staff selection, in view of rule 10(5) since they had given sufficient notice to the authorities about the date of recruitment. Respondents would refer to rule 15 to 18 of G.O.Ms. No. 1 and state that since the schools are in the agency areas and tribal children cannot pay school fees, it is the duty of the State to impart them free education and that the respondents were not liable to pay salaries to the teachers. In their affidavit, filed in reply to the counter-affidavit filed by the respondents 1 to 3, the petitioners would refer to the inconsistent stand of the official respondents. While in the earlier proceedings dated 03.04.2002 it was stated that selections were directed to be stopped by order dated 28.03.2001, consequent upon the proceedings dated 03.04.2002 being set aside by this Court, the official respondents were now taking a different stand. With regards failure to provide reservation in favour of women, petitioners would state that, as respondents 4 to 7 schools were situated in interior tribal areas, there were no bus facilities or pucca houses and each village consisted of just 30 to 40 huts, no woman candidate had appeared for the recruitment. It is stated that amendment to the roster, under Rule 22 of the A.P. State and Subordinate Service Rules, was issued vide G.O.Ms.No. 65, dated 15.02.1997 whereas the recruitment process had started in November 1996 itself and was completed on 18.02.1997, 10.02.1997, 18.02.1997, 10.02.1997 and 15.07.1997 respectively. Petitioners would also state that since Rule 22 provides for carry forward of these vacancies, the future vacancies can be filled up by women candidates. With regards constitution of the selection committees, petitioners would state that the school managements had constituted a staff selection committee as per Rule12 and had addressed the 3rd respondent competent authority, to send his nominee, more than three weeks in advance. Petitioners would refer to Rule 12(5) and Rule 13 to submit that the selection process would not be vitiated even if there was no quorum in the selection committee. Petitioners would state that since the respondents had not taken any objection as contemplated under Rule 12(5), the plea that the official nominee was not invited, was unsustainable. Petitioners would refer to the fact that immediately after selection, the school managements had sent proposals, to the 3rd respondent, through the Mandal Educational Officer, Kurupam. However the proposals were neither rejected nor admitted till 03.04.2002. Petitioners would state that their working in the respective posts was noted in the visitors books by the Mandal Educational Officer, the attendance registers were also counter-signed by him and hence the contention that proposals were not sent to the competent authority was incorrect. Petitioners would contend that, having sat over the proposals for six years, in spite of several reminders, the respondents could not take the plea that the school managements had not sent the proposals at all. Petitioners would submit that they had been working without any remuneration for the past six years. Sri K. Jaganmohan Reddy, leaned Counsel for the petitioner, would submit that the entire recruitment process, culminating in the appointment of the petitioners by respondents 4 to 7 schools, ended by February 1997 itself. Learned Counsel would refer to the proceedings of the 3rd respondent dated 03.04.2002 wherein it stated that respondents 4 to 7 had already been informed, vide proceedings dated 23.03.2001, not to proceed to fill up the vacant teachers posts in their aided schools in agency areas as the 3rd respondent had sought permission of the 2nd respondent to fill up the aided teachers posts in elementary schools in agency areas, and that the orders of the 2nd respondent were awaited. Learned Counsel would contend that since the entire selection process had already been completed in February 1997, more than four years prior to the proceedings of the 3rd respondent dated 23.03.2001, no reliance could be placed by the respondents on the said proceedings to contend that the vacant teachers posts could not be filled up. Learned Counsel would refer to the proceedings dated 23.03.2001 and submit that the said proceedings were issued pursuant to the representation submitted by certain aided elementary schools in March 2001 asking the 3rd respondent to nominate a departmental member to the staff selection committee to fill up the vacant teachers posts in their institutions. Learned Counsel would submit that the proceedings dated 23.03.2001 has no application whatsoever to respondents 4 to 7 schools in as much as the selection process had been completed much prior thereto. Learned Counsel would refer to the order of this Court, in W.P.No. 6332 of 2003 dated 10.04.2003, wherein this Court took note of the fact that the 3rd petitioner herein was selected and appointed, vide orders dated 15.02.1997, and ever since then the proposal seeking approval was pending with the 3rd respondent. This Court held that the proceedings of the 3rd respondent dated 03.04.2002 was made without application of mind to the facts of the case and that, while dealing with the case of the third petitioner who has been appointed way back in the year 1997, the 3rd respondent has referred to the proceedings dated 28.03.2001 which related to grant of permission for filling up of vacant posts of certain other teachers in other schools. This Court held that, when the 3rd respondent was appointed way back in the year 1997, the question of violating the orders dated 28.03.2001 did not arise. This Court set aside the impugned proceedings, dated 03.04.2002, and remitted the matter to the 3rd respondent for his consideration afresh duly taking into account the relevant factors. The request of respondents 4 to 7, seeking approval of appointment of the petitioners herein as Secondary grade teachers was rejected by the 3rd respondent, in the impugned proceedings dated 16.06.2003, on the following grounds. i. While Rule 12(5), of G.O.Ms.NO. 1 dated 01.01.1994, requires all aided schools to have a nominee of the District educational officer, not below the rank of Deputy educational officer, in the staff selection committee, Respondents 4 to 7 schools did not have a departmental nominee in the staff selection committee constituted to select candidates for appointment as Secondary teachers; ii. Rule 12(6) requires the school management to follow the rule of reservation. However respondents 4 to 7 school managements did not comply with the rule of women reservation; iii. Though the school management had not taken any steps, as per G.O.Ms.No.1 dated 01.01.1994, they had requested the 3rd respondent, in response to his letter dated 23.03.2001, after a lapse of six years to approve the appointments made by them contrary to the rules, without informing the 3rd respondent soon after the selections were made though Rule 12(8) requires aided institutions to obtain approval of the competent authority and only thereafter to make appointment to posts. iv. Since the management did not follow the rules and regulations and the correct selection procedure, as per G.O.Ms.No. 1 dated 01.01.1994, and had appointed teachers as per their wish and will, the department was not responsible for the irregular selection of teachers in these institutions. Sri K. Jaganmohan Reddy, learned Counsel for the petitioner, would submit that Rule 12(6) which requires all private educational institutions to conform to the annual rotation roster, in selection of posts, was struck down by a Division Bench of this Court in Government of A.P. Vs. P.Thirumala Devi[1] and in as much as the rule of reservation was introduced subsequently, under G.O.Ms.No. 75 dated 23.09.2002, the requirement of following the rule of reservation as prescribed in the said G.O. could not be applied retrospectively to selections made in February 1997 and, as such, even assuming that the rule of reservation had not been complied with, the selection of the petitioners as Secondary grade teachers could not be said to have made in violation of the rules of reservation. In so far as reservation in favour of women candidates is concerned, learned Counsel would submit that this requirement came into effect pursuant to G.O.Ms. No. 65 dated 15.02.1997 whereas the recruitment process had already commenced by November 1996 itself. Learned Counsel would submit that, even otherwise since no women applicant had appeared for the interview, as respondents 4 to 7 schools were located in interior tribal areas, the question of appointment of women teachers did not arise and the rule of reservation in favour of women could not, therefore, be said to have been