THE HON’BLE SRI JUSTICE N.V. RAMANA W.P. Nos. 8262 and 26174 of 2006 Common order: The petitioners in W.P. No. 8282 of 2006, are teaching and non- teaching staff working in Ashraf-Ul-Madrais High School (hereinafter referred to as “the employees”). The employees filed the writ petition questioning the orders issued by respondent No.1, namely the Government, in Memo dated 27.12.2004, rejecting the proposals sent by respondent No.3, namely the Commissioner and Director of School Education, for approval of absorption of their services as teaching and non-teaching staff in the school into aided posts, as illegal and arbitrary and consequently, direct respondent No.1 to re-consider the case of the employees for absorption, as recommended by the Commissioner and Director of School Education, vide his proposals dated 12.06.2003. The Government filed counter in the above writ petition. Considering the stand taken by the Government in the counter that having regard to the judgment of the Court in W.P. No. 26554 of 2005, dated 13.12.2005, the employees of Ashraf-Ul-Madrais High School (hereinafter referred to as “the School”) are not entitled to maintain writ petition, and that it is only the School that has to agitate their case, the School, which is arrayed as respondent No.5 in the writ petition, took up the cause of the employees and filed writ petition in W.P. No. 26174 of 2006, questioning the orders issued by the Government in the Memo, which is subject-matter of dispute in writ petition in W.P. No. 8282 of 2006, filed by the employees of the School. The petitioners state that the School is a Muslim Minority Institution. The employees were appointed by the School during 1992 and 2002 in unaided posts. While so, consequent upon resignation, death, retirement and promotion of teaching and non-teaching staff working in the aided posts, the School appointed the employees, and thereafter, the Secretary and Correspondent of the School, submitted proposals dated 12.06.2003 to respondent No.4, namely the District Educational Officer, Hyderabad, through the Deputy Educational Officer, Charminar Mandal, for absorption of the employees into grant- in-aid. Respondent No.4, vide letter dated 30.06.2003, the said proposals for approval to respondent No.3, namely the Regional Joint Director of School Education, who in turn had addressed letter dated 16.11.2003 to respondent No.2, namely the Commissioner and Director of School Education, requesting him to issue necessary orders for taking appropriate action in the matter. Acting on the said letter, respondent No.2, vide letter dated 19.02.2004, recommended the proposals to the Government, for approval of absorptions of the employees. Respondent No.1-Government having considered the said proposals, issued orders in the impugned Memo dated 27.12.2004 rejecting the same inter alia stating that the School has not followed the established recruitment procedure in the recruitment of the employees and that the appointments were not approved by the competent authority, that even though the School is a muslim minority institution, but in the appointment of unaided staff, it has to comply with the provisions of Rule 12(8) of the Rules issued by the Government in G.O. Ms. No. 1, Education, dated 01.01.1994. It is questioning this Memo as being illegal and arbitrary, the petitioners filed the present writ petitions. The District Educational Officer filed counter on behalf of the official respondents. The learned Government Pleader for School Education reiterating the counter averments submitted that the School in the appointment of the employees has not followed the procedure contemplated in G.O. Ms. No. 1, dated 01.01.1994 and G.O. Ms. No. 524, dated 20.12.1998, and the appointments of the employees, did not receive the approval of the competent authority. He submitted that as per the provisions of Rule 6 of the Rules, issued by the Government in G.O. Ms. No. 23, dated 10.03.1999, even though the minority educational institution, need not seek approval of the competent authority for the appointments made in unaided posts, but if they make the appointments to aided posts, they have to follow the provisions of Rule 12(8) of the Rules, issued by the Government in G.O. Ms. No. 1, dated 01.01.1994, which provides that the appointments made by the aided or unaided institutions to the teaching or non-teaching staff, shall be subject to approval of the competent authority. He submitted that since the School, which is a minority educational institution, has not followed the said Rules in appointing the teachers and non-teaching staff to the aided posts, the Government have rejected the proposals. Therefore, no exception can be taken to such action of the Government, and prayed that the writ petitions be dismissed. Heard the learned counsel for the petitioner-School, the petitioners-employees of the School and the learned Government Pleader for School Education for the official respondents. The School, admittedly, is a minority educational institution. Pursuant to resignation/promotion/retirement/death of some of its employees, the management of the School appointed the employees in the teaching and non-teaching posts in the resultant vacant posts. The School sent proposals for admission of the posts in which the employees are working to grant-in-aid. The District Educational Officer, Hyderabad, forwarded the said proposals to the Regional Joint Director of School Education, who in turn forwarded the same to the Commissioner and Director of School Education. The Commissioner and Director of School Education, recommended for approval of the proposals sent by the School for absorption of the employees into aided posts to the Government. However, the Government having considered the said proposals, vide orders impugned in the writ petitions, rejected the same inter alia stating that in the appointment of the employees, the School has not followed the recruitment procedure and that the recruitment of teachers was not approved by the competent authority, as required under Rule 12(8) of the Rules issued by the Government in G.O. Ms. No. 1, Education (PS-1) Department, dated 01.01.1994. Aggrieved by the said rejection orders, the petitioners filed the present writ petitions. It is the contention of the petitioners, particularly the School, that since the School is a minority educational institution, the provisions of Rule 12(8) of the Rules are not applicable in respect of the appointments made by it, and more particularly having regard to the orders issued by the Government in G.O. Ms. No. 23, Minorities Welfare (M & R) Department, dated 10.03.1999 and G.O. Ms. No. 75, School Education (PS-2) Department, dated 23.09.2002, and therefore, the action of the Government in rejecting the proposals sent by the School, as recommended by the Commissioner and Director of School Education, for absorption of the employees appointed by it, is illegal and arbitrary. To consider the question whether the School, being a minority educational institution is exempted from following the procedure contemplated in Rule 12(8) of the Rules, it would be appropriate to some of the provisions governing the recruitment procedure relating to recruitment of teachers and non-teaching staff by private educational institutions. The Government for the purpose of grant of permission for establishment of school, upgradation of existing schools, according of recognition to schools, administration of schools and disciplinary control of the employees of the schools under private management including minority educational institutions, have framed Rules known as A.P. Educational Institutions (Establishment, Recognition, Administration and Control of Schools under Private Managements) – Rules, 1993 (hereinafter referred to as ‘the Rules’), in G.O. Ms. No.1, Education Department (PS-2), dated 01.01.1994. Rule 12 of the Rules deals with appointment of staff. Sub-rules (6) and (8) thereof, read: (6) The selection of the posts in all private educational institutions shall conform to the communal rotation roster. However, this shall not apply to minority educational institution only if they are selecting a candidate belonging to the concerned minority community. Where such a candidate is fitted in a vacancy belonging to SC/ST then the SC/ST vacancy shall be carried forward to the next point. (8) All appointments made either teaching or non-teaching staff by aided or unaided institutions shall be subject to the approval of the competent authority. For this purpose, the educational agency shall inform the competent authority within one month of the selection. The competent authority shall grant approval unless the selection has been in violation of these rules. If the approval is not granted within two months from the date of receipt of the proposals in respect of unaided posts, the approval shall be deemed to have been granted. In order to obviate confusion, it shall be incumbent on the educational agency to remind the competent authority one month after the initial communication, if no approval is received. The burden of proof of having communicated the selection to the competent authority shall lie with the educational agency. From a reading of sub-rule (6) of Rule 12, it becomes clear that even though a private educational institution has to make selections conforming to the communal rotation roster, the same is not applicable to a minority educational institution, and if the minority educational institution, appoints any person in a vacancy reserved for SC/ST by a minority candidate, the SC/ST vacancy shall be forwarded to the next point. While a reading of sub-rule (8) of Rule 12, would make it clear that the appointments made either to teaching or non-teaching staff by aided or unaided institutions shall be subject to the approval of the competent authority, which shall grant approval considering the fact whether the institution made the selections following the procedure or not. Even though Rule 12(8) of the Rules, provides that the appointments made by the aided or unaided institutions to the teaching or non-teaching staff, shall be subject to approval of the competent authority, the fact remains, Government issued orders in G.O. Ms. No. 23, Minorities Welfare (M & R) Department, dated 10.03.1999, removing certain anomalies and extending certain concessions to minority educational institutions in the matter of making appointments, which inter alia dispenses with the requirement of the minority educational institution to seek approval of any government authority for appointments made in the non-aided posts. Rule 6, which deals with approval of appointments, reads as follows: The minority educational institutions are not required to seek the approval of any Government Authority for the appointment made in the non-aided posts. However, if it is brought to the notice of the competent authority that the appointed candidate does not fulfil the requisite educational qualifications, the competent authority may cancel the appointment after giving an opportunity of explanation to the appointing authority. Regarding appointment to aided posts, the provisions of Rule 12(6) of G.O. Ms. No. 1, Educational (PS-2) Department, dated 01.01.1994 shall be applicable for all the Minorities Educational Institutions. While so, the Government having taken a policy decision on the issues relating to (i) filling up of vacant aided posts and (ii) admission of grant-in-aid for the non-aided posts as per the provisions of A.P. Private Educational Institutions Grant-in-aid (Regulation) Act, 1988, issued certain orders in G.O. Ms. No. 75, School Education (PS-2) Department, dated 23.09.2002, in partial modification of its earlier orders. In Clause (i) thereof, the Government accorded permission to the managements to fill up all the existing vacant grant-in-aid teacher posts and non-teaching staff duly following Rule 12 (except sub-rule 6) of the Rules, issued in G.O. Ms. No. 1, dated 01.01.1994. In Clause 7 thereof, the Government ordered as under: 7. Extreme care may be taken in respect of the qualified unaided staff who were appointed against the sanctioned posts and as per the recruitment procedure and whose appointments were approved by the competent authorities for consideration of absorption in the respective posts duly following the seniority quantifications etc., in accordance with law. In such cases, the following guidelines shall also be followed: (i) The posts should have been sanctioned by the competent authority as per the Teacher-Pupil ration. (ii) The candidate must possess the qualifications as prescribed for each category of post for Government/Local Body Teachers. (iii) If more than one candidate is working in a sanctioned unaided post same cadre and all of them satisfy the conditions prescribed for absorption in the vacant aided posts shall be done as per seniority in unaided posts. (iv) Where there is a feeder category for promotion the vacant aided posts shall be filled in the ratio of 2:1 i.e. 1st and 2nd by promotion and the 3rd by direct recruitment absorption. (v) These guidelines are applicable for all the appointed unaided posts and shall not be applied for future appointment in unaided posts. (vi) In future there shall not be any approval by the Department for recruitment to unaided post and hence no question of any absorption in future. The management may fill up unaided posts if they require as per the staffing pattern and teacher pupil ration with their own funds. Having regard to the above guidelines, issued by the Government, the School contends that the provisions of Rule 12(8) of the Rules, are not applicable to the case of the petitioners, and the respondents are under an obligation to consider the proposals sent by the School for absorption of the employees into aided posts, in terms of the guidelines orders issued by the Government in G.O. Ms. No. 75, dated 23.09.2002. The learned Government Pleader of School Education submitted that the above G.O. has been withdrawn, and to evidence that he produced copy of G.O. Ms. No. 96, Education (SE.PS-II) Department, dated 04.12.2006, by which the above orders issued by the Government in G.O. Ms. No. 75, dated 23.09.2002, were withdrawn, and submitted that in view of withdrawal of G.O. Ms. No. 75, dated 23.09.2002, it would not be open for the School to contend that the School is entitled to the benefit of the guidelines issued by the government in G.O. Ms. No. 75, dated 23.09.2002. No doubt, the Government had issued G.O. Ms. No. 96, dated 04.12.2006, withdrawing its earlier orders issued in G.O. Ms. No. 75, dated 23.09.2002, but the fact remains, the G.O. does not clearly state as to whether it has any retrospective operation, and whether it would cover the cases that were processed for consideration in terms of the guidelines issued G.O. Ms. No. 75, dated 23.09.2002 and whether it is applicable to cases that were considered and rejected or are still pending consideration. Since G.O. Ms. No. 96, dated 04.12.2006, does not state specifically state as to from which date, G.O. Ms. No. 75, dated 23.09.2002, it should be held that it is only prospective in operation, and would not cover the cases that were processed in terms of G.O. Ms. No. 75, dated 23.09.2002. Therefore, it would not be proper on the part of the official respondents to contend that the provisions of Rule 12(8) of the Rules, are applicable to the appointments of the employees made by the School, particularly it is the case of the petitioners that they have sent the proposals for absorption of the appointments of the employees in terms of G.O. Ms. No. 75, dated 23.09.2002 when it was in subsistence. Having regard to the aforementioned discussion, I deem it appropriate to dispose of the writ petitions with the following directions: The orders issued by the Government, impugned in the writ petitions are set aside. Respondent No.1-Government is directed to reconsider the whole issue once again in the light of the discussion made above and pass appropriate orders on the proposals of the School, as recommended by the Commissioner and Director of School Education, for approval of the appointments made by the School, expeditiously, preferably within a period of three months from the date of receipt of a copy of this order. Accordingly, the writ petitions are disposed of. No costs. _________________ N.V. RAMANA, J. Date: 18th December, 2008. KSR