IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE NINETH DAY OF JULY, TWO THOUSAND TEN PRESENT: THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.14491 of 2003 Between: S.M.S. Oriental High School Vyyallapalli Village, Kaluvoi Mandal, Nellore District. … Petitioner And The Govt., of A.P., Education Dept., Hyderabad & others. … Respondents Counsel for the petitioner: Sri S. Girmoji Rao Counsel for the respondents: AGP for School Education This Court made the following: THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.14491 of 2003 ORDER:- This writ petition is filed for a Mandamus to set aside proceedings dated 13.06.2003 issued by respondent No.2 and consequently to direct respondent No.2 to sanction the posts of teaching and non-teaching staff to the petitioner school as recommended by respondent No.3 by his proceedings dated 29.08.2002. The petitioner is an Oriental Upper Primary School. It was admitted to grant-in-aid in the year 1990 and that it was upgraded from Upper Primary School to High School by proceedings dated 31.12.1993 of the Regional Joint Director of School Education, Guntur. The petitioner made a proposal to respondent No.3 for sanctioning certain teaching and non-teaching posts as per the oriental pattern. Respondent No.3 and his nominee i.e., Deputy Educational Officer visited and inspected the school and on the basis of the report dated 12.08.2002 submitted by the Deputy Educational Officer, respondent No.3 has sent his recommendations to respondent No.2 for sanction of teaching and non-teaching staff to the petitioner’s school vide proceedings Rc.No.6344/(A11)/B7/93, dated 29.08.2002. As respondent No.2 failed to act on the recommendations of respondent No.3, the petitioner filed Writ Petition No.21781 of 2002. The said writ petition was disposed of by this Court by order dated 31.10.2002 directing respondent No.2 to consider the proposals sent by respondent No.3 and pass appropriate orders within two months. As the said order was not complied with, the petitioner filed C.C.No.440 of 2003, which was disposed of by this Court by order dated 30.06.2003, wherein it was noted that respondent No.2 issued proceedings dated 13.06.2003 under which certain teaching and non- teaching posts were sanctioned and that if the petitioner still feels aggrieved by the said proceedings, it shall be free to workout its remedies. Assailing proceedings dated 13.06.2003, the petitioner filed the present writ petition. The grievance of the petitioner, as pleaded by it in its affidavit and projected by the learned counsel for the petitioner at the hearing, is that the respondents have failed to follow the A.P. Educational Institutions (Establishment, Recognition, Administration and Control of Schools Under Private Managements) Rules, 1993 in general and Rule 12(8) of the Rules in particular. The learned counsel submitted that proceedings dated 13.06.2003 issued by respondent No.2 placed reliance on Memo dated 21.05.2003 issued by respondent No.1 and that the said memo is based on G.O.Ms.No.75, dated 23.09.2002, which runs counter to the Rules. The learned counsel further submitted that G.O.Ms.No.75, which contained executive instructions, cannot override the statutory rules framed by respondent No.1. The learned Assistant Government Pleader for School Education submitted that under Clause 7(6) of G.O.Ms.No.75, a ban was imposed on the approval of the recruitment to unaided posts as well as absorption in future and that the management may fill up the unaided posts, if they require, as per the staffing pattern and teacher pupil ratio with their own funds. Placing reliance on this G.O., the learned Assistant Government Pleader sought to sustain the impugned proceedings. Rule 12(8) of the Rules, which is relevant for the present purpose, reads as under: “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 the above reproduced Rule, it is clear that all the appointments of teaching and non-teaching staff in the aided or unaided institutions shall be subject to the approval of the competent authority and if approval is not given by the competent authority within two months from the date of receipt of the proposals from the educational agency in respect of the unaided posts, the approval is deemed to have been granted. Admittedly, this Rule was in force when the proposals were made by the petitioner and recommended by respondent No.3. However, respondent No.1 issued G.O.Ms.No.75, dated 23.09.2002. Clause 7(6) of the said G.O. reads as under: “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 ratio with their own funds.” The above clause is in direct conflict with Rule 12(8) of the Rules. It is not in dispute that G.O.Ms.No.75 was issued in exercise of the executive power of respondent No.1. As rightly pointed out by the learned counsel for the petitioner such an executive power cannot be exercised to set at naught a statutory rule. Obviously, realizing this position, respondent No.1 amended Rule 12(7), which reads as under: “The Educational Agency shall be free to appoint employee/staff to an unaided post as per subject requirements, provided they have the prescribed qualification to hold the posts. The service conditions of un-aided teaching and non-teaching staff shall be contractual in nature between the educational agency concerned and the appointee. Disputes, if any, in this shall be adjudicated in a civil court of competent jurisdiction/Educational Tribunal (as and when constituted) and without reference to competent authority or the Government. However, in respect of aided posts, the provision of sub-rules (4), (5) and (6) shall apply.” But, curiously, sub-rule (8) of Rule 12 was allowed to remain albeit with an amendment in the year 2005, whereunder the provision of deemed approval has been deleted. Thus, the fact remains that even after the amendment to Rule 12, its sub-rule (8) is still intact under which the approval of competent authority for appointment of teaching or non-teaching staff by aided or unaided institutions is mandatory. Therefore, in the face of this statutory rule, it is not permissible for respondent No.2 to bank upon G.O.Ms.No.75, dated 25.09.2002 and refuse to consider the proposals of the petitioner as recommended by respondent No.3. In this view of the matter, the impugned order is set aside. Respondent No.2 is directed to consider the proposals afresh in the light of the recommendations made by respondent No.3, pass appropriate order and communicate the same to the petitioner within a period of two months from the date of receipt of a copy of this order. Subject to the above direction, the writ petition is allowed. As a sequel to disposal of the writ petition in the manner indicated above, WPMP.No.17940 of 2003 filed by the petitioner for interim relief is disposed of as infructuous. _____________________________ C.V. NAGARJUNA REDDY, J Date: 09.07.2010 ES