THE HON’BLE SRI JUSTICE G.CHANDRAIAH W.P.NO.9389 OF 2005 O R D E R Heard both the counsel. 2. The 3rd respondent – Panyam Cements High School, is an aided institution. The 2nd respondent – District Educational Officer, Kurnool by proceedings in Rc.No.6768/C6/2003 dated 4.6.2003 accorded permission to the Correspondent of the School to fill up the vacant posts as per the recruitment procedure prescribed under A. P. Education Instructions, Rules 1983 and Rules 12 (6) and 13 of G.O.Ms.No.1 Edn. (PS-2) Dept. dated 1.1.1994 and the guidelines issued by the Commissioner and Director of School Education, A.P. Hyderabad. Pursuant to the permission granted by the 2nd respondent, the 3rd respondent – Correspondent of the School, issued employment notice on 10.07.2003 in the newspapers, calling for applications from the eligible candidates. In response to the same, the petitioners applied for the said posts and the 1st petitioner got selected to the post of secondary Grade Teacher, the 2nd petitioner was selected to the post of Physical Education Teacher and the 3rd petitioner was selected to the post of Grade-II Telugu Pandit. They were issued appointment orders dated 22.7.2004 and 26.7.2004 respectively, and they joined in the 3rd respondent – School and ever since they were working. The 2nd respondent – District Educational Officer, Kurnool by proceedings in Rc.No.6768/A4/03 dated 4.12.2004 forwarded the proposals for approval of the selection of candidates i.e., petitioners, to the 1st respondent – Regional Joint Director of School Education, Kadapa. The operative portion of the proceedings dated 4.12.2004 is as under: “In view of the above, I request you to kindly approve the selection of the above three candidates as made by the Staff Selection Committee, which was constituted for the purpose of the selection of the candidates for the post. The management has followed the recruitment procedure as envisaged in Rules 12 and 13 of the G.O.Ms.No.1 Edn. Dated 1.1.1994 and the management may been informed that the candidates selected should be placed under the apprenticeship for two years and payment of stipend as prescribed in G.O.Ms.No.100 Edn. dated 16.8.2001.” 3. After receipt of the above proceedings dated 4.12.2004, the 1st respondent – Regional Joint Director, by the impugned proceedings in Rc.No.6535/B2/2004 dated 31.3.2005 rejected the proposals. Hence, the present writ petition. 4. Counter affidavit is filed on behalf of the respondents 1 and 2, wherein justifying the impugned order of rejection, the writ petition is sought to be dismissed. 5. There is no dispute that the 2nd respondent accorded permission to the 3rd respondent – aided institution to fill up the vacant posts and accordingly notification was issued and the petitioners were selected by the Staff Selection Committee duly constituted under the rules and the 2nd respondent also ratifying the procedure adopted by the 3rd respondent school, forwarded the proposals for approval to the 1st respondent – Regional Joint Director of Schools. The reasons in the impugned order for rejection of the proposals sent by the 2nd respondent for approval, are as under: i) In the staff particulars the details of staff appointed for English Medium sections are not furnished. The District Educational Officer is requested to submit details whether the staff of Aided sections are being utilized to unaided sections also if so justify the reasons. ii) Permission for filling up of the posts was accorded by the District Educational Officer in the month of June 2003 but selections were made during July 2004 i.e., after one year. The reasons for delay may be submitted. iii) The District Educational Officer, Kurnool is requested to submit the details how the management was imparting studies to the students when so many posts were vacant. iv) As per the true extract of roster register furnished by the management attested by the Deputy Educational Officer, Dhone it is noticed that the management has filled up certain vacancies without prior permission/approval of the competent authority and shifted the roaster point according to their whims and fancies so that OC (General) roaster point is arrived. The District Educational Officer, Kurnool is requested to submit explanation for permitting the management without observing the rules in vogue. v) The District Educational Officer, Kurnool is instructed that the approval of selection of the candidates who were selected by the staff selection committee is not feasible since the roster points fixed by the District Educational Officer, Kurnool are not as per Rules.” 6. From a reading of the above reasons, it is clear that the 1st respondent has not stated that any particular rule or provision has been violated and with regard to furnishing of particulars under objections (i) and (iii) is concerned, it is be noticed that the said objection are trivial in nature and if the 1st respondent wants clarification, he can call for particulars and on those grounds, no rejection can be made. 7. With regard to delay under objection (ii) is concerned, the case of the petitioners is that the 2nd respondent has taken his own time to appoint the Department Nominee and there is no material on record to show when the Departmental Nominee has been identified. Further, mere delay in conducting selections, cannot be result in any illegality and on that ground rejection cannot be made. 8. The learned Government Pleader for respondents 1 and 2 also referred to the ban imposed by the Government on filling up of vacant posts in grant-in-aid posts. This is not the reason in the impugned proceedings. Further, the permission by the 2nd respondent for filling up of the vacant posts in the 3rd respondent – school and the selection process and the forwarding of proposals for approval were made much prior to the imposition of the ban by the Government in the year 2004 and, therefore the plea of ‘ban on recruitment’ is not available to the respondents 1 and 2. 9. In similar circumstances, in W.P.No.9375/2005, pertaining to the selections of the primary section of the very same school is concerned, the 1st respondent by proceedings dated 31.3.2005 has rejected the proposals on the ground of delay and entertaining a doubt with regard to the correctness of the permission granted by the District Educational Officer. The respondents also referred to the ‘ban on recruitment’ imposed by the Government. This court by order dated 29.12.2010, while setting the impugned dated 31.3.2005 therein, passed the following order: “It is not in dispute that the 2nd respondent accorded approval for filling up of the vacant posts of Hindi Pandits Grade-I and II. The notification was issued in terms of G.O.Ms.No.1, dated 01.01.1994. Selection process was also completed and the petitioners were selected. The proposals submitted by the 3rd respondent were rejected by the 1st respondent, through proceedings, dated 31.03.2005. It is rather unfortunate that the Officer of the rank of Regional Joint Director, has chosen to pass such a callous and indifferent order. One of the reasons for rejection is that he entertained a doubt, as to the correctness of the permission, accorded by the 2nd respondent. In fact, he sought explanation for this from the 2nd respondent. In case he entertained a doubt, he ought to have taken final decision, after seeking clarification. The doubt cannot constitute the basis for rejection of the proposals. Another reason pleaded by respondents 1 and 2 is that there was delay on the part of the management in undertaking selections. Even if it is true that the departmental nominee was identified in May, 2004, the Committee does not come into existence automatically. The convenience of various officials has been ascertained and the Committee has to be constituted. At any rate, mere delay of few months, in conducting the selection, does not result in any illegality. Finally, respondents 1 and 2 state that a ban has come into force. The ban, at the most, would operate for future appointments. In the instant case, the steps were initiated much in advance. At any rate, the 1st respondent has accorded approval for the appointment of the 1st petitioner in the year 2007. By the time, the so-called ban was very much in operation. The 2nd petitioner stands on the same footing. Hence, the Writ Petition is allowed, and the impugned order is set aside. The 1st respondent shall pass fresh orders according the same treatment to the 2nd petitioner, as he did it to the 1st petitioner.” 10. The other ground in the impugned order for rejection is ‘non- following of the roaster’. A learned single Judge of this Court in W.P.No.16053/2004 dated 02.07.2008 while considering similar facts and circumstances where the proposals sent for approval to the Government in an aided private institution, were rejected on the ground of non-following of roster held, as under: “Issue No.1. Analysis and Conclusion: As noticed above, the reasons recorded in the impugned order dated 27.9.2005 of the 3rd respondent for rejecting grant of approval of the selections/appointments of the petitioners are: (a) The roster points were not included: This objection proceeds on the assumption that rule of reservation according to the roster is applicable and must be followed even by private educational institutions. Rule – 12 (6) of the Rules mandates such reservations. These were challenged before this court. A Division Bench of this court in P.THIRUMALA DEVI AND ANR. Vs. GOVERNMENT OF A.P.AND ANR. Invalidated Rule -12 of the Rules on the ground that the Rule is ultra vires the provisions of the parent Act i.e., The Andhra Pradesh Education Act, 1982. The State carried the matter to the Supreme Court by way of Civil Appeal Nos.6575 and 6576 of 2004. By the judgment dated 14.3.2007 the supreme Court dismissed the appeal upholding the conclusion of the Division Bench of this court that Rule -12(6) of the Rules is beyond the scope of the Act. The Supreme Court held that if the State was keen to provide reservation for SC/ST/OBC, it should have amended the Act and thereafter framed the rules and as long as the Act holds the field, the rules cannot be framed beyond the provisions of the At. The Supreme Court reiterated that Rule 12(6) OF 1993 Rules is beyond the scope of Section 99 of the A.P. Education Act 1982 and was therefore invalid. In the light of the above clear declaration of this court as confirmed by the reasoned judgment of the Supreme Court, the current and operative position is that Rule 12(6) of the Rules does not operate. The State has thus no power and never had the power to have enjoined private educational institutions to follow the reservation. It is distressing that the deponents of the counter affidavits who are all responsible officers have chosen to not only insist in the impugned order that the selection of the petitioners was invalid since roster points were not indicated but have further chosen to file sworn affidavits adopting a legal premise which was clearly not available. This conduct is in clear defiance of the judgment of this court and the Supreme Court which is binding on the State of A.P. and on all State actors in the employment of State of Andhra Pradesh. Such irresponsible position adopted in counter affidavits on this aspect of the matter, must be depreciated.” 11. The above judgment of the leaned single Judge was upheld by the Division Bench of this court in W.A.No.571/2009 dated 16.7.2009 and pursuant to the same, the Government has implemented the orders of the learned single Judge by issuing Memo.No.19595/SE.P.S.1.2/2007 dated 22.8.2009 of Government of Andhra Pradesh Education (SE.PS.1) Department. 12. In view of the above judgment of the this court as well as the Apex Court, the reason given by the 1st respondent in the impugned order, with regard to not following the roaster, cannot be sustained. 13. For the foregoing reasons, the impugned order is set aside and the respondent no.1 - Regional Joint Director of School Education, Kadapa is directed to consider the case of the petitioners for approving the proposals sent by the 2nd respondent – District Educational Officer, Kurnool in Rc.No.6768/A4/03 dated 4.12.2004 and pass appropriate orders in accordance with law within a period of one month from the date of receipt of a copy of this order. 14. The writ petition is accordingly allowed. No costs. AVS ---------------------------------- 24—03—2011