*THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY +WRIT PETITION No.7849 of 2006 % 27-8-2010 # Nehru Convent High School, Ashok Nagar, Kakinada, East Godavari District, reptd., by its Correspondent-Sri M.Adinarayana and others. … Petitioners Vs. $ State of Andhra Pradesh, repd., by its Secretary, School Education, PS Department, Secretariat Buildings, Hyderabad and others. … Respondents <GIST: >HEAD NOTE: ! Counsel for the petitioners: Sri N.Subba Rao ^ Counsel for the respondents: AGP for School Education. ? CASES REFERRED : Nil IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT: THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY Twenty Seventh day of August Two Thousand And Ten WRIT PETITION No.7849 of 2006 Between: Nehru Convent High School, Ashok Nagar, Kakinada, East Godavari District, reptd., by its Correspondent-Sri M.Adinarayana and others. … Petitioners And State of Andhra Pradesh, repd., by its Secretary, School Education, PS Department, Secretariat Buildings, Hyderabad and others. … Respondents Counsel for the petitioners: Sri N.Subba Rao Counsel for the respondents: AGP for School Education. This Court made the following: THE HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY W.P.No.7849 of 2006 ORDER:- Petitioner No.1 is a recognized Buddhist Minority Institution running a high school at Kakinada, East Godavari District. It is an aided institution. For filling up of two unaided posts of SGT and Grade-II Hindi Pandit (one each) petitioner No.1 has advertised in news papers. After going through the selection process, petitioners 2 and 3 were appointed on 16-6-2000 and 27-9-2001 as unaided Grade-II Hindi Pandit and unaided SGT respectively. When the vacancies in the aided posts relating to the said two categories of posts arose, petitioner No.1 has sent proposals to respondent No.1, through competent authority, for absorption of petitioners 2 and 3 in the grant-in-aid posts. As no decision was taken on the said application, the petitioners were constrained to file Writ Petition No.11960 of 2005, which was disposed of by this Court by order dated 8-6-2005 with a direction to respondent No.1 to consider and dispose of the proposal of petitioner No.1. As the said order was allegedly violated, the petitioners filed Contempt Case No.1158 of 2005. At that stage respondent No.1 has issued the impugned memo dated 3-12-2005, whereby it has rejected the request of petitioner No.1 for absorption of petitioners 2 and 3 into the aided posts. Paragraph-3 of the said order which is impugned in this Writ Petition and which contains the reasons for rejection, reads as under : “In the references first and second cited, the Government after careful examination of the matter, rejected the proposal for absorption of the two candidates from un-aided posts to aided posts twice as the absorption orders issued by the management was not in accordance with the rules issued in G.O.Ms.No.23, Minorities Welfare Department, dated 10-3- 1999 and rules issued in G.O.Ms.No.1, Education (PS.2) Department, dated 1-1-1994 as they violated Rule 6 of G.O.Ms.No.23, dated 10-3-1999 and rule 12(8) of G.O.Ms.No.1 dated 1-1-1994. The Management has not followed the established procedure as per law while recruiting the individuals and the original appointment of the individuals was in an un-aided posts. Hence, absorption of the individuals in the aided posts is not feasible for consideration as per rules.” The sum and substance of the reasons for rejection is that the absorption orders issued by the 1st petitioner-Management were not in accordance with the Rules notified under G.O.Ms.No.23, Minorities Welfare Department dated 10-3-1999 and the Rules notified in G.O.Ms.No.1, Education (P.S.2) Department dated 1-1- 1994. It was elaborated in the above reproduced para that the 1st petitioner-Management has violated Rule 6 of the former Rules and Rule 12(8) of the latter Rules and that it has failed to follow the established procedure as per Law while recruiting petitioners 2 and 3 in the unaided posts. At the hearing, Sri N.Subba Rao, the learned Counsel for the petitioners submitted that the impugned order of rejection is contrary to the very Rules on which reliance was placed by the 1st respondent. He submitted that while rejecting the petitioners’ request, obviously as a reaction to the petitioners’ action of initiation of contempt proceedings, the 1st respondent failed to even advert to the report dated 15-2-2005 sent by the 4th respondent through the 3rd respondent, not to speak of considering the contents of the report. The learned Counsel further submitted that Rule 6 notified in G.O.Ms.No.23 dated 10-3-1999 clearly exempts the Minorities Educational Institutions from the requirement of seeking specific approval of any Governmental Authority for appointments made in the unaided posts. He further submitted that Rule 12(8) of the Rules notified in G.O.Ms.No.1, dated 1-1-1994 which requires approval of the competent authority for appointment in aided posts, has no relevance to the present case because the petitioners 2 and 3 were appointed in unaided posts. The learned Assistant Government Pleader for School Education opposed the above contentions of the learned Counsel for the petitioner and submitted that as the 1st petitioner-Management failed to obtain the approval of the competent authority before appointing petitioners 2 and 3 in the unaided posts, the 1st respondent is justified in rejecting the request of the 1st petitioner- Management for absorption of petitioners 2 and 3 into aided posts. I have carefully considered the contentions of the learned counsel for the parties and perused the record. It is an admitted fact that the 1st petitioner-Management is recognised as a Minorities Institution and consequently it is governed by the Rules notified under G.O.Ms.No.23 dated 10-3-1999 (for short “1999 Rules”). Rule 6 of the said Rules reads as under : “Approval of Appointments: The Minorities Educational Institutions are not required to seek the approval of any Governmental Authority for the appointment made in the unaided 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(8) of G.O.Ms.No.1, Education (P.S.2) Department, dated 1-1-1994 shall be applicable for all the Minorities Educational Institutions.” Rule 12(8) of the Rules notified under G.O.Ms.No.1 dated 1-1- 1994 (for short “1994 Rules”) which is made applicable to the Minorities Institutions, to the extent of the aided posts, 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. 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.” It is pertinent to note that the application of the 1st petitioner- Management for approval for absorption of petitioners 2 and 3 into grant-in-aid was referred to the 4th respondent. After a thorough examination, the 4th respondent has submitted his report in Rc.107- A7/02 dated 15-2-2005 to the 3rd respondent who in turn has forwarded the said report vide his letter Rc.372/B2/2005 dated 5-3- 2005 to the Principal Secretary of the 1st respondent. A perusal of the said report of the 4th respondent shows that he has specifically concluded that the 1st petitioner-Management has followed the procedure for selection of unaided Secondary Grade and Hindi Pundit-Grade-II teachers as a Minority Educational Institution and that the petitioners 2 and 3 who are appointed to the unaided posts had requisite qualifications for holding the said posts. Surprisingly, while considering the petitioners’ request for absorption, the 1st respondent has not referred to this report at all. As rightly submitted by the learned counsel for the petitioners, except stating that the 1st petitioner-Management has not followed the established procedure as per Law while recruiting petitioners 2 and 3 in unaided posts, the 1st respondent failed to specifically point out as to in respect of which part of Rule 6 or Rule 12(8) of the 1999 and 1994 Rules respectively, that the 1st petitioner-Management failed to follow the procedure. The main pre-requisite for appointment of Teaching and Non-teaching staff in both aided and unaided posts as envisaged in Rule 12(8) of 1994 Rules is the prior approval of the competent authority. However, this requirement is done away with by Rule 6 of the 1999 Rules in respect of the appointments to the unaided posts by the Minorities Institutions. The petitioners 2 and 3 were admittedly appointed in the unaided posts. This being the undisputed position, I do not find any justification whatsoever in the finding of the 1st respondent that the 1st petitioner-Management has failed to follow the above-mentioned Rules. It is not the pleaded case of the respondents that the findings contained in the report dated 15-5-2005 of the 4th respondent are factually incorrect. In the additional counter affidavit, it is acknowledged that in the said report of the 4th respondent he has stated that the 1st petitioner-Management has followed the procedure in filling up the unaided posts. From the uncontroverted findings of the 4th respondent in his report and the legal position referred to above, I am of the opinion that the 1st petitioner-Management has not committed any illegality, either procedural or substantive, in appointing petitioners 2 and 3 in the unaided posts and the findings arrived at by the 1st respondent in the impugned order, contrary to this position, cannot be sustained. In the light of the discussion undertaken hereinabove, the impugned order is quashed and the Writ Petition is allowed. The 1st respondent is directed to approve the proposals of the 1st petitioner- Management for absorption of petitioners 2 and 3 in the aided posts as recommended by the 4th respondent by passing a fresh order and communicate the same to the petitioners within a period of two months from the date of receipt of this order. No costs. ________________________ Justice C.V.Nagarjuna Reddy Date : 27-8-2010 L.R. copy to be marked : YES / NO AM