IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE SIXTEENTH DAY OF JULY TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO : 8905 of 1999 Between: ..... PETITIONER AND .....RESPONDENT 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 Counsel for the Petitioner:MR.B.V.RAMA MOHAN RAO Counsel for the Respondent No.: GP FOR HIGHER EDUCATION WRIT PETITION NO : 26587 of 1999 Between: ..... PETITIONER AND .....RESPONDENT 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 Counsel for the Petitioner:MR.M.V.RAJA RAAM Counsel for the Respondent No.: GP FOR EDUCATION The Court made the following : THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NOS.8905 AND 26587 OF 1999 COMMON ORDER: Both these writ petitions pertain to the same G.O., viz., G.O.Rt.No.344, Education (CE.II.1) Department, 12.03.1999, and they are thus, amenable to disposal by way of this common order. Writ Petition No.8905 of 1999 is filed by M.V.N.J.S. and R.V.R. College of Arts & Sciences, Malikipuram, East Godavari District (hereinafter referred to as ‘the College’), seeking a writ of certiorari to quash the said G.O., whereby the orders dated 07.02.1991 of the Regional Joint Director of Higher Education, Rajahmundry, the second respondent, were confirmed; and to consequently uphold the orders passed by the College on 30.04.1990 dismissing the third respondent Lecturer from service. Writ Petition No.26587 of 1999 is filed by R.Lakshman Rao, the third respondent in Writ Petition No.8905 of 1999 (hereinafter referred to as ‘the Lecturer’), seeking implementation of the said G.O. in true spirit with all consequential, service and monetary benefits. It is not in dispute that the College initiated disciplinary action against the Lecturer with regard to certain irregularities. In consequence, by orders dated 30.04.1990 the College dismissed him from service. Aggrieved thereby, he filed an appeal before the Regional Joint Director of Higher Education, Rajahmundry, who set aside the said orders on 07.02.1991 on the ground that the punishment imposed was disproportionate to the charges levelled against the Lecturer and secondly, as the dismissal of the Lecturer from service was effected without the prior approval of the competent authority under the provisions of the Andhra Pradesh Education Act, 1982 (for brevity, ‘the Act of 1982’). Aggrieved by the order passed by the Regional Joint Director of Higher Education, Rajahmundry, the College preferred an appeal before the Government which was rejected vide the impugned G.O. The contention of the College before the Government was that the appellate authority did not find that the order passed by it was arbitrary or perverse and as regards the lack of prior approval of the competent authority, the College alleged that the authority had not yet been appointed by the Government. However, the Government after examining the matter on merits, took note of the fact that the College had not taken the prior approval of the Regional Joint Director of Higher Education, Rajahmundry, who is the competent authority, before imposing the punishment of dismissal from service upon the Lecturer and confirmed the orders dated 07.02.1991 passed by the appellate authority. Thereupon, the Regional Joint Director of Higher Education, Rajahmundry, was requested by the Government to take further action in the matter accordingly. It is relevant to note that by the order dated 07.02.1991, the appellate authority, while setting aside the order of termination from service, directed the College to reinstate the Lecturer forthwith. In the present writ petition, it is not open to the College to canvass the merits of the disciplinary action initiated by it against the Lecturer. This Court, in exercise of jurisdiction under Article 226 of the Constitution, would not normally sit in appeal over the findings in the disciplinary proceedings. Further, the case primarily revolves around whether the College had followed the prescribed procedure when it passed the orders on 30.04.1990 dismissing the Lecturer from service. Section 79 of the Act of 1982, to the extent that it is relevant, reads as hereunder: “79. Dismissal, removal or reduction in rank or suspension, etc., of employees of private institutions: –– (1) No teacher or member of the non-teaching staff employed in any private institution (hereinafter in this Chapter referred to as ‘the employee’) shall be dismissed, removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges: Provided that no order of dismissal, removal or reduction in rank shall be passed under this sub-section against an employee other than an employee of a minority educational institution without the prior approval of such authority or Officer as may be prescribed for different classes of private institutions; ………” Admittedly, the College failed to take the prior approval of the competent authority under Section 79(1) first proviso of the Act of 1982 before passing the orders of dismissal. Trite to state, the statutory procedure cannot be dispensed with, being mandatory in character. In this regard, the observations of a Division Bench of this Court in TAGORE HOME JUNIOR COLLEGE, EAST MAREDPALLY, SECUNDERABAD v. P.P.A. CHRISTIAN[1] are apposite: “25. The proviso appended to sub-section (1) of Section 79 of the Act has been enacted for a purpose of allowing the competent authority to consider the materials on record independent of the opinion formed by the Enquiry Officer and/or by the disciplinary authority so as to enable him to come to a conclusion that the matter is such where a major penalty is required to be imposed. The competent authority before grant of such approval would, therefore, be required to apply its own mind and satisfy itself, prima facie, that rules of fair play and natural justice have been complied with. The requirement to take prior approval before a punishment can be imposed cannot be said to be an empty formality, which can be dispensed with only in a case where the proviso is attracted. With regard to the importance of complying with the principles of natural justice, reference may be made to a decision of the Calcutta High Court in Sri Hanuman Steel Rolling Mills vs. C.E.S.C. Ltd. wherein one among us (S.B.Sinha, J.) observed: “39……… In my opinion, the principles of natural justice are required to be complied with, be it pre-decisional hearing or a post-decisional one depending on the facts and circumstances of each case.” 26. In fact, the contextual interpretation of the Act and the Rules would clearly suggest that the same had been made for protecting the services of the employees and not for the purpose of granting an arbitrary power upon the authorities and any particular officer thereof to likely twist a case of this nature, keeping in view the fact that right to continue in service is protected under Article 21 of the Constitution of India. It was, therefore, obligatory on the part of the management to strictly comply with the statutory requirements. ………” It is therefore manifest that the College was bound to obtain the prior approval of the competent authority under Section 79(1) first proviso before it visited the Lecturer with the punishment of dismissal from service. With regard to the contention urged by the learned counsel for the College that no competent authority had been appointed by the Government by the date of the passing of the order of dismissal from service, it is relevant to notice that the Government of Andhra Pradesh promulgated the Andhra Pradesh Private Institutions Employees (Disciplinary Control) Rules, 1983 vide G.O.Ms.No.467, Education (R), dated 03.11.1983 and Rule 3 thereof speaks of the designation of particular officers as the competent authorities for various purposes under the Act of 1982. Rule 3, to the extent it is relevant, reads as hereunder: “(3) The Officers mentioned in column (1) of the Table below shall perform the functions of the competent authority under Sections 79, 80 and 83 for the respective jurisdiction mentioned in column (2) and in relation to the private institutions mentioned in column (3) thereof: –– TABLE ------------------------------------------------------------------------------------------ Competent Authority Area of Jurisdiction Class of Institutions ------------------------------------------------------------------------------------------ 1. Regional Joint Director Within the local limits All Colleges. of Higher Education of his jurisdiction 2. ……. ……… … … … 3. ……. ……… … … … 4. ……. ……… … … … -----------------------------------------------------------------------------------------” In the light of the aforestated rule position established long prior to the passing of the dismissal order and demonstrating that the competent authority for Section 79 of the Act of 1982 is the Regional Joint Director of Higher Education for all Colleges within the local limits of his jurisdiction, it is not open to the College to baldly state that no competent authority had been appointed, thereby excusing it from obtaining his prior approval in the present case. Therefore, the College was bound to obtain the prior approval of the Regional Joint Director of Higher Education, Rajahmundry, before passing the order of dismissal on 30.04.1990. The admitted failure of the College to do so vitiates the action of the College in terminating the services of the Lecturer in violation of the statutory procedure. Accordingly, no error is made out in the action of the Government in confirming the orders of the appellate authority, vide the impugned G.O. The impugned G.O. does not call for interference in this writ petition and the same is therefore upheld. It is stated that the Lecturer attained the age of superannuation on 31.01.1995. In view of the interim suspension orders passed by this Court on 29.04.1999, the Lecturer was not reinstated in service pursuant to the orders of the appellate authorities. However, as I have upheld the impugned G.O., the action of the College in resorting to dismissal of the Lecturer from service is unsustainable. The Lecturer is therefore entitled to all consequential benefits in pursuance of the orders passed by the Regional Joint Director of Higher Education, Rajahmundry, on 07.02.1991 which were confirmed by the Government vide the impugned G.O., upto the date of his superannuation from service. Writ Petition No.8905 of 1999 is accordingly dismissed. In the light of the order passed in Writ Petition No.8905 of 1999 upholding the validity of the impugned G.O., the College is directed to implement the orders of the Regional Joint Director of Higher Education, Rajahmundry, and remit all consequential benefits payable in pursuance thereof to the Lecturer from the date of his dismissal from service till the date of his superannuation, within a period of two months from the date of receipt of a copy of this order. Writ Petition No.26587 of 1999 is accordingly allowed. There shall be no order as to costs. ____________________ SANJAY KUMAR, J. 16th July, 2009. VGSR / PGS [1] 2001 (4) ALT 191