IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE SEVENTEENTH DAY OF JUNE TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 23240 of 2007 Between: K. Rama Sastry, S/o. Subrahmanyam, Private Managmenet Aided Elementary School (KS), Battiprolu Village & Mandal, Guntur District. ..... PETITIONER AND 1 The Government of Andhra Pradesh, Rep. by its Secretary, School Education Department, Secretariat Buildings, Hyderabad. 2 The Director of School Education, Government of Andhra Pradesh, Hyderabad. 3 The District Educational Officer, Guntur, Guntur District. .....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 an appropriate Writ, order or direction more particularly one in the nature of Writ of Certiorari calling for the records relating to and in connection with the order of the 2nd Respondent in Rc.No.1322/B1-3/2006 dated 3-10-2007 and order of the 3rd Respondent in Rc.No.17578/(C5)(C4)C9/99 dated 27-4-2007 and quash the same as arbitrary, illegal, in violation of Article 19(i)(g) of the Constitution of India and Section 26 and 21 of A.P. Education Act and Rule 9 of G.O.ms.No.365 E (T.I), dated 1-4-1982 and pass such other order orders as this Hon'ble Court may deem fit and proper. Counsel for the Petitioner: PARTY-IN-PERSON Counsel for the Respondents: GP FOR SCHOOL EDUCATION The Court made the following : ORDER: Late K.Subrahmanyam, Higher Grade Trained Teacher established an elementary school at Battiprolu village of Guntur District on 22.08.1940. The school was admitted to full grant-in-aid with effect from 20.03.1941. He handed over the management of the school to his son K.Ramasastry-writ petitioner. The District Educational Officer, Guntur, approved the change of management in his proceedings No.14786/C4/88, dated 26.10.1988. The founder of the school died on 15.12.1989. The petitioner developed the school and constructed semi-permanent buildings over an extent of six cents purchased by him in the month of August, 1990. When the District Educational Officer, Guntur-3rd respondent changed correspondentship of the school from the petitioner to K.L.Kantha Rao, who is his youngest brother, the petitioner filed W.P.No.7773 of 1993 challenging the said proceedings. The said writ petition came to be allowed setting aside the proceedings issued by the 3rd respondent with a direction to pass orders in accordance with law. The 3rd respondent again appointed K.L.Kantha Rao, as Manager/Correspondent of the school based on the statements of local people numbering 29. Thereupon the petitioner filed W.P.No.21601 of 1997 challenging the action of the 3rd respondent. The said writ petition came to be allowed setting aside the proceedings issued by the 3rd respondent and directing the entrustment of management and correspondentship of the school to the petitioner. When the 3rd respondent disobeyed the orders passed in W.P.No.21601 of 1997, the petitioner filed contempt case being C.C.No.1439 of 2000. The contempt case came to be closed on 26.12.2000 consequent on handing over the office of management and correspondentship of the school to the petitioner by K.L.Kantha Rao. Liberty was given to the petitioner in the contempt case to take necessary action against K.L.Kantha Rao for obtaining custody of the records retained by him through the process of law. The petitioner filed O.S.No.45 of 2001 on the file of the Senior Civil Judge, Tenali and also moved I.A.No.435 of 2001 seeking interim direction to the District Educational Officer, Guntur, to cause production of school records through K.L.Kantha Rao and also by the Headmaster of the school on 04.07.2001. Despite interim direction, the 3rd respondent did not produce school records and allowed the same to be held by K.L.Kantha Rao and Headmaster of the school. The petitioner filed several contempt cases being C.C.Nos.1047 of 2001, 197 of 2004, 299 of 2005 complaining disobedience of the order, dated 11.09.2000, passed in W.P.No.21601 of 1997. The Mandal Educational Officer, on the directions of the 3rd respondent, conducted enquiry and submitted report dated 22.05.2003 pointing out various lapses on the part of the teachers. The petitioner made a representation to the Director of School Education, Government of Andhra Pradesh, Hyderabad-2nd respondent on en-mass reduction of pupil roll/attendance from 320/230 to 204/92 on 01.07.2001 and to 81/41in June, 2003 and to 51/41 in September, 2994. The 2nd respondent directed the Regional Joint Director of School Education, Guntur, to conduct enquiry. The 3rd respondent issued proceedings vide Proc.No.Spl./UR/C5/2004, dated 22.07.2004, proposing cancellation of recognition of the school if pucca accommodation is not provided. The petitioner constructed two storied R.C.C. building for school after obtaining permission from Battiprolu Panchayat on 23.08.2005. While so, the 3rd respondent issued a show-cause notice No.17578/CS/C4/C9/99, dated 14.03.2007 calling for explanation as to why the school should not be closed withdrawing recognition from the academic year 2007-2008 because of fall of pupil roll from 1998-99 onwards. The petitioner submitted explanation bringing forth all the facts for the steep fall of pupil roll from the year 1998-99 onwards. The 3rd respondent issued proceedings No.17578/C5/C4/C9/99, dated 27.04.2007, ordering closure of the school and withdrawing permanent recognition from the academic year 2007-2008. The petitioner challenged the said proceedings in W.P.No.11247 of 2007. The said writ petition came to be disposed of on 30.05.2007 delegating the petitioner to work out statutory remedy available under Section 89 of the Andhra Pradesh Education Act. The petitioner filed a statutory appeal on 30.05.2007 before the 2nd respondent. The appeal filed by the petitioner ended in dismissal confirming the orders passed by the 3rd respondent vide proceedings No.1322/B1-3/2006, dated 03.10.2007. Hence, this writ petition by the petitioner challenging the proceedings of the 3rd respondent as confirmed by the 2nd respondent with regard to closure of the school. The grounds of challenge are: 1) 3rd respondent is not empowered to order for closure of the school and withdrawal of the permanent recognition to the school which has been in existence prior to the enactment of the Andhra Pradesh Education Act (Act 1 of 1982) (for short, ‘the Act’); 2) Non-compliance of Section 26 of the Act i.e. notice is required to be given by the Educational Agency (private institution) of not less than one academic year expiring with the end of any academic year. 3) The actual pupil strength is viable for continuance of the school; 4) The orders passed by the 2nd and 3rd respondents are in utter violation of the instructions given in proceedings Rc.No.SPL/B4/2/2007, dated 22.06.2007; 5) Invocation of Sub-Rules 16 and 17 of Rule 10 of G.O.Ms.No.1 Education, dated 01.01.1994 cannot be sustained; 6) The observation of the Regional Joint Director of School Education, Guntur, that there is no scope for improvement of strength is without application of mind and appreciation of the subsisting factual aspect. 7) The observation of the 2nd respondent that there is no proper accommodation is without any verification;] 8) G.O.Ms.No.103, dated 05.08.2005, does not contemplate closure of schools with single digit strength. 2. A counter-affidavit has been filed on behalf of the official respondents. Sri Y. Chandra Mohan, District Educational Officer, Guntur-3rd respondent, has sworn to the counter-affidavit. It is stated in the counter-affidavit that the 3rd respondent visited the Aided Elementary School (KS), Battiprolu of Guntur District, on 18.11.2000 and noted that the roof of the school building is totally collapsed. The District Educational Officer informed the petitioners under proceedings No.17578/C5/99, dated 20.10.2000 to make necessary application for shifting the school from the rented building. A five men committee enquired certain allegations made against the school on 07.11.2006. The committee noticed that the school is functioning in a thatched shed, which is partly collapsed and that the school has no infrastructural facilities. The petitioner was requested vide proceedings No.RC.No.17578/C5/99, dated 20.10.2000 to constitute a governing body in accordance with the provisions contained in G.O.Ms.No.1 E, dated 01.01.1994 within a period of one week from the date of taking over the charge of the management of the school from K.L.Kantha Rao. The Regional Director of School Education, Guntur, conducted a detailed inquiry and submitted a report to the Director of School Education pointing out various lapses in the functioning of the school. The District Educational Officer instructed the petitioner to provide pucca accommodation to the school, but he failed to do so. There was steep fall in the strength of the school from 285 to 17 from the academic years 1999-2000 to 2006-2007. The Regional Joint Director of School Education, Guntur, submitted enquiry report stating that there was no scope for improving the strength of the school in future. A show-cause notice was issued to the petitioner as to why the school should not be closed withdrawing the recognition as there was no minimum strength and there was no scope to improve the strength and also there were no infrastructural facilities. The petitioner requested certain information and records, which are not at all relevant, to drag on the issue. The Director of School Education, issued proceedings instructing the authorities to take necessary steps to close down the school and make necessary arrangements for transfer of 3 Secondary Grade Teachers working in the school to the needy private schools in the district. Considering the five men committee report and instructions issued by the Director of School Education, orders were issued to close down the school from the academic year 2007-2008 vide proceedings Rc.No.17578/(C5)(C4)C9/99, dated 27.04.2007. Under sub-rule (1) (a) of Rule 3 of G.O.Ms.No.1 Education dated 01.01.1994, the District Educational Officer is the competent authority to elementary education. Under sub-rule (17) of Rule 10 of the said G.O., the District Educational Officer is competent to transfer staff along with post to any other needy private aided schools within the district. Orders were issued to close down the school, which would come into force in the academic year 2007-2008. Teachers working in the school were accommodated in N.S.M. Aided Elementary School, and K.N.T. Aided Elementary School, Repalle in the month of August, 2007. The petitioner has challenged the orders issued by the District Educational Officer by filing W.P.No.11720 of 2007. The said writ petition ended in dismissal on 30.07.2007 giving liberty to the petitioner to avail alternative remedy of appeal. Accordingly, the petitioner filed an appeal before the Director of School Education, Andhra Pradesh, Hyderabad. The appeal filed by him ended in dismissal on 03.10.2007. The petitioner himself appointed one K.Sreenivasa Rao, who is no other than his son, as Secondary Grade Teacher though there is no existing vacancy in the school without following the due procedure as contemplated under the G.Os., issued from time to time and without obtaining prior permission of the competent authority i.e. the District Educational Officer. The orders issued by the petitioner came to be cancelled by the District Educational Officer, Guntur vide proceedings No.17578/C5/99, dated 29.05.2002. The petitioner issued orders of compulsory retirement to Smt.K.Khajamma on 30.07.2003 to accommodate his son K.Sreenivasa Rao. The said Khajamma submitted representation to the District Educational Officer, Guntur, ventilating her grievance. The District Educational Officer set aside the orders of the petitioner. Thereupon the petitioner filed an appeal, dated 31.08.2003 to the Director of School Education, Andhra Pradesh, Hyderabad. The appeal filed by him ended in dismissal on 12.12.2006. The school run by the petitioner was already closed and the transfer certificates of the respective students were given to them and no academic activity was allowed from 27.04.2007. Heard Sri K. Rama Sastry, Party-in-person and the learned Government Pleader for School Education appearing for the respondents. The petitioner contends that closure of school maintained by him is not in accordance with the provisions of A.P. Education Act and G.O.Ms.No.103, Education, dated 05.08.2005 and G.O.Ms.No.1, Education, dated 01.01.1994. He further submits that the enquiry conducted and the findings recorded by the 5 Men Committee are not based on factual aspects. In a way, the petitioner contends that there is two storied R.C.C. pacca building for the school and therefore the finding recorded by the 5 Men Committee is not based on factual aspects. He placed reliance on a decision of the Supreme Court reported in Brahma Samaj Education Society and ors. V. State of West Bengal[1] in support of his contentions. Much emphasis has been laid on Paragraph 8 of the judgment, which reads as under. But that control cannot extend to the day-to-day administration of the institution. It is categorically stated in TMA Pai (cited supra at page 551, paragraph 72) that the estate can regulate the method of selection and appointment of teachers after prescribing requisite qualification for the same. Independence for the selection of teachers among the qualified candidates is fundamental to the maintenance of the academic and administrative autonomy of an aided institution. The State can every well provide the basic qualification for teachers. Under the University Grants Commission Act, 1956, the University Grants Commission (UGC) has laid down qualifications to a teaching post in a University by passing Regulations. As per this Regulations UGC conducts National Educational Testing (NET) for determining teaching eligibility of candidates. UGC has also authorized accredited States to conduct State level Eligibility Test (SLET). Only a person who has qualified NET or SLET will be eligible for appointment as a teacher in an aided institution. This is the required basic qualification of a teacher. Petitioner’s right to administer includes the right to appoint teachers of its choice among the NET / SLET qualified candidates. Learned Government Pleader for School Education submits that closure of school was preceded by the reports submitted by the 5 Men Committee and the Regional Joint Director, School Education, and the action of the respondent authorities cannot be found fault. This is a classic case how an educational institution started by a philanthropic person ended in litigation. The school was started in pre-independence days by the father of the petitioner, namely, Subramanyam. The School went on well and it is admitted to grant-in- aid. The trouble started when the founder of the school was in the evening days of his life. After his death, tassel began between the petitioner and his brother with regard to management of the school. The petitioner filed various writ petitions and ultimately the management of the school came to be rested with him. In the meanwhile, the strength of the school has gone down. 5 Men Committee came to be appointed. Basing on the report submitted by it, a show cause notice under Section 26 of the A.P. Education Act, 1982 has been issued to the petitioner as to why the school cannot be closed. The 5 Men Committee report and the inspection report of the Regional Joint Commissioner would go to show that the present strength of the pupil on the whole is 17 and the effective attendance of the pupil is 13. There are three aided teachers in the school. The District Educational Officer, keeping in view the guidelines issued under G.O.Ms.No.103, Education, dated 05.08.2005, shifted those three aided posts along with incumbents to some other schools. A fact remains that the effective strength of the school has gone down to 13. The District Educational Officer had issued show cause notice proposing to close down the school giving out the reasons for closure. After hearing the petitioner, final orders came to be passed by the District Educational Officer on 14.03.2007. The appeal as well as the revision filed by the petitioner ended in dismissal. Hence this writ petition. The power of judicial review is now well defined in a series of decisions rendered by this Court and the Supreme Court. The modern trend also points to the judicial restraint in administration action, as has been held by the Supreme Court in Tata Cellular v. Union of India[2], which reads as under. The scope and extent of power of judicial review of the High Court contained under Article 226 of the Constitution would vary from case to case, the nature of the order, the relevant statute as also the other relevant factors including the nature of power exercised by the public authorities, namely, whether the power is statutory, quasi judicial or administrative. The reasons assigned in the show cause notice for closure of the school, is steep fall in the strength of the school. For better appreciation, I may refer to the statistics collected by the 5 Men Committee as to how the school strength has gone down. Year Roll Attendance 1998-1999 263 247 1999-2000 285 209 2000-2001 Registers not produced by the Management 2001-2002 195 103 2002-2003 108 79 2003-2004 92 61 2004-2005 51 39 2005-2006 27 20 2006-2007 17 13 The District Educational Officer has considered the report and proceeded to exercise the jurisdiction conferred on him under G.O.Ms.No.103, Education, dated 5.08.2005. The petitioner was given fair opportunity by the competent authority. There is no controversy with regard to the steep fall in the strength of the pupil. The actual attendance of the pupil in the year 2006-2007 is 13 and thereby school has become unviable. Therefore, I do not see any flaw in the order passed by the District Educational Officer. Accordingly, the Writ Petition is dismissed. _________________________ (B. Seshasayana Reddy, J.) 17th June, 2008 Js. ASSISTANT REGISTRAR // TRUE COPY // SECTION OFFICER To 1 The Secretary, Government of Andhra Pradesh, School Education Department, Secretariat Buildings, Hyderabad. 2 The Director of School Education, Government of Andhra Pradesh, Hyderabad. 3 The District Educational Officer, Guntur, Guntur District. 4 2 CCs to G.P. for School Education, High Court of A.P. Hyderabad.(OUT). 5. 2 CD copies. Form-NIC-OGS/WP{TRT} [1] 2004 (1) Decisions Today (SC) 618 [2] (1994) 6 SCC 651