IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY SEVENTH DAY OF AUGUST TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 3979 of 2006 Between: Bapuji High School rep by Secretary, & Correspondent Sri M. Raghavulu S/o Venkataiah, Iishanpura, Hanamkonda, Warangal District ..... PETITIONER AND 1 State of Andhra Pradesh rep by Secretary, School Education, Secretariat, Hyderabad 2 Regional Joint Director of School Education Warangal 3 District Education Officer, Warangal .....RESPONDENTS Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court may be pleased to i) issue appropriate Writ, order or direction more particularly one in the nature of Writ of mandamus by calling for the records relating to and connected with proceedings Rc.No. 12179/P1/2005 dated 31-01- 2006 and set a side the same holding it absolutely illegal, arbitrary, unconstitutional and violative of statutory rules. ii) declare that G.O.Ms. No.75, dated 23-9-2002 wherein the condition imposing that the departmental representative to be present for selections for ﬁlling up unaided posts i wholly illegal, arbitrary and unconstitutional and violative of statutory rules and consequently direct the 3rd respondent to nominate a person to represent in the process of selection to ﬁll up the posts of teachers as submitted in the representation by the Writ Petition in letter No.1/APP/05 dated 29-8-2005 and consequently based on that process the same in the interest of justice and pass such other order or orders as are deem ﬁt and proper in the circumstances of the case Counsel for the Petitioner: MR.PRATAP NARAYAN SANGHI Counsel for the Respondents.: GP FOR SCHOOL EDUCATION The Court made the following : ORDER: This writ petition has been ﬁled by Bapuji High School, rep. by its Secretary and Correspondent Sri M.Raghavulu with a prayer to issue appropriate writ, order or direction, more particularly, one in the nature of writ of Mandamus by calling for the records relating to and connected with Proceeding Rc.No.12179/2005, dated 31.01.2006 and set aside the same holding it absolutely illegal and arbitrary; and a further relief has been sought for to declare G.O.Ms.No.75, School Education (P.S.2) Department, dated 23.09.2002 as illegal and arbitrary. 2. M.Raghavulu, Secretary and Correspondent of Bapuji High School has sworn to the writ aﬃdavit. It is stated in the writ aﬃdavit that the petitioner-Institution was started in the year 1971 and it was recognized and registered by the Education Department under the provisions of the A.P. Education Act, 1982. The Education Department initially admitted three posts to grant-in-aid and subsequently admitted 13 posts to grant-in- aid on the basis of the increased strength of the school. The State Government issued G.O.Ms.No.1, Education (PS 2), dated 01.01.1994 regulating various activities of the educational institutions. Rule 12 of the A.P. Educational Institutions (Establishment, Recognition, Administration and Control of Schools under Private Managements) Rules, 1993 (for short, ‘the Rules’) deals with the procedure for recruiting the teaching and non-teaching staﬀ of aided as well as unaided institutions. As per the said rule, the petitioner-Institution took out an advertisement in ‘Vaartha’ Telugu daily and ‘Deccan Chronicle’ English daily on 04.08.2005 for ﬁlling up the 3 posts of School Assistants (unaided) and 5 posts of S.G.B. teachers (unaided). It is further stated that the petitioner-Institution is required to have a nominee from the District Educational Oﬃcer, Warangal- 3rd respondent. Accordingly, the petitioner-Institution submitted a representation to the 3rd respondent seeking appointment of Departmental Nominee. Thereupon, the 3rd respondent issued Proceedings Rc.No.12179/P1/2005, dated 31.01.2006 refusing to nominate the departmental representative relying on the administrative instructions issued in G.O.Ms.No.75, Education, dated 23.09.2002. I deem it appropriate to refer para.7 of the writ aﬃdavit for better understanding of the grievance of the petitioner-Institution and it reads as hereunder: “7. Be that as it may, as submitted supra, since the department was pleased to grant permission for starting additional sections in view of the additional strength of the institution. I also submitted a representation to the department to grant permission creating additional posts, to cope up with the teaching burden. I submit that the 2nd respondent after conducting an enquiry as contemplated under the Rules vide Proceedings Rc.No.2003/B3/01- (i), dated 9.4.2002 granted permission to ﬁll up 3 posts of School Assistants (unaided) and 5 posts of S.G.B. Teachers (unaided). I submit that pursuant to the creation of posts by the 2nd respondent to ﬁll up the said unaided posts, I took out an advertisement for ﬁlling up the said posts in two local newspapers as contemplated under the rules, namely in Telugu Vaartha on 4.8.2005 and the Deccan Chronicle on 4.8.2005. I submit that pursuant to the said advertisement I received 200 applications from the prospective candidates. I submit that as per the Rules, I am required to have a nominee from the 3rd respondent to nominate to either attend the selection or give a convenient date or nominate somebody on his behalf namely, a representative enabling me to constitute the Selection Committee. Surprisingly, the3rd respondent vide impugned Proceedings Rc.No.12179/P1/2005, dated 31.01.2006 refused to nominate the departmental representative relying on the administrative instructions issued vide G.O.Ms.No.75, Education, dated 23.9.2002. I most respectfully submit that it is a settled principle of law that no administrative instructions can supercede the statutory rules and as contemplated under Rule 12 of G.O.Ms.No.1, dated 1.1.11994, the 3rd respondent is under a legal obligation to provide a departmental nominee even for selecting a teacher to be appointed in an unaided post. Hence, the action of the respondent in refusing to nominate an oﬃcer for selections to ﬁll-up an unaided post is wholly illegal, arbitrary, unconstitutional and violative of statutory rules and liable to be set aside. I submit that even the instructions issued in G.O.Ms.No.75, dated 23.09.2002 since being contrary to the statutory rules, is wholly illegal, arbitrary and unconstitutional and liable to be set aside. I submit that for lack of teachers the institution is suﬀering a lot. I most humbly submit that the respondents are under the legal obligation to respect law and follow the same, they are under its mandate. It is not open for the respondents to pass orders contrary to law.” Aggrieved by the proceedings dated 31.01.2006 of the 3rd respondent, the petitioner-institution approached this Court invoking the jurisdiction under Article 226 of the Constitution of India, with the prayer stated supra. 3. 3rd respondent ﬁled counter-aﬃdavit. Ch.Ramana Kumar has sworn to the counter-aﬃdavit. It is stated in the counter- aﬃdavit that the petitioner-Institution enjoying the grant-in-aid upto UPS classes i.e. 1 to VII and the management is running classes VIII to X with their own funds. Additional sections were also permitted to the petitioner-Institution based on the increased strength. 13 posts were admitted to grant-in-aid for Classes I to VII to the petitioner-Institution. Subsequently, in the year 2002, the petitioner-Institution has been permitted to create 3 posts of School Assistants and 5 posts of S.G.B.T. The petitioner-Institution advertised in newspapers calling for applications to ﬁll-up the said posts after lapse of three years period, which is contrary to the Rules. It is further stated in the counter-aﬃdavit that for ﬁlling up the vacancies in un-aided posts, no approval by the department is required as per G.O.Ms.No.75, dated 23.09.2002. The relevant portion of the counter-affidavit reads as hereunder: “It is submitted that in fact that the G.O.Ms.No.75 Education, has been issued on 23.09.2002. After issue of G.O.Ms.No.75, dt.23.09.2002, the Management has issued notiﬁcation for ﬁlling up the un-aided posts which were sanctioned through Regional Joint Director of School Education, Warangal vide Proc.Rc.No.2003/B3/2001-1, dt.09.04.2002. The Management has not taken any further action to ﬁll-up the un-aided posts sanctioned above even after completion of 2 years and 3 months. The Management has not taken prior permission to ﬁll up the unaided posts from the competent authority before issuing the notiﬁcation. After issuance of notiﬁcation calling applications for ﬁlling up of unaided posts i.e. 05.08.2005, the Management submitted proposals for nomination of the Departmental Nominee. It is submitted that the Govt. issued G.O.Ms.No.75, dated 23.09.2002 in the light of the orders of the Hon’ble High Court in several cases have issued instruction relating to (1) ﬁlling up vacant aided post and (2) admission of Grant-in-aid for the new posts, as per provisions of the A.P. Private Educational Institutions Grant-in- Aid (Regulation) Act, 1988 (Act 22/1988). In para.(VI) of Para (VII) of GO Ms.No.75, dated 23.09.2002, it is clearly stated that 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 the aided post if they require as per the staﬀ pattern and teacher pupil ratio with their own funds. In the said GO, Act 22 of Act 98 and G.O.Ms.No.01, Edn.Ps-2, dated 01.01.1994 were referred. Further the petitioner has also deviated the rule (4) of 12 without notiﬁed the vacancies to the employment exchange. There is no violation of statutory rules. The contention of the petitioner is that the management is suﬀering for lack of Teachers in the institution is incorrect since he did not implemented orders for the posts which are granted 3 years back and also the inability in functioning with un-economic strength i.e, Average Attendance i.e. from Class I to V = 101. In view of the above circumstances and keeping in view of the Govt. Orders issued in G.O.Ms.No.75, dt.23.09.2002, there is no provision to approval of appointment of an unaided teaching and non-teaching staﬀ from the competent authority, the Management only have empowered to appoint unaided staﬀ as per the needs of the institution. It is therefore, no merits in the W.P.” 4. Heard learned counsel appearing for the petitioner- Institution and learned Government Pleader for School Education appearing for the respondents. 5. Learned counsel appearing for the petitioner-Institution submits that proceedings issued by the respondents refusing to appoint a departmental nominee cannot be sustained in view of sub-rules (4), (5), and (8) of Rule 12 of the Rules. In elaborating his arguments, he submits that all educational institutions receiving grant-in-aid are required to follow the procedure in ﬁlling up the vacancies of aided and unaided posts for which a nominee of the District Educational Oﬃcer is required to be in the selection committee. It is further submitted by him that a plain reading of Rule 8 of the Rules indicates that all appointments either teaching or non-teaching be aided or unaided shall be subject to the approval of the competent authority. Much emphasis has been laid on this rule to challenge the proceedings issued by the District Educational Officer, Warangal-3rd respondent. 6. Per contra, learned Government Pleader for School Education appearing for the respondents submits that G.O.Ms.No.75, School Education (P.S.2) Department, dated 23.09.2002, which is challenged by the petitioner-Institution has been withdrawn by the Government by issuing G.O.Ms.No.96 Education (SE.PS.II) Department, dated 04.12.2006 and therefore, the relief sought for in the writ petition has become infructuous. A further submission has been made that sub-rule (7) of Rule 12 of the Rules, has been substituted by way of amendment in G.O.Ms.No.58 Education (SE.PS.I) Department, dated 13.07.2006 and as per the amended sub-rule (7), 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. 7. In reply, learned counsel appearing for the petitioner- Institution submits that even if the petitioner-Institution appoints a candidate to the unaided post and in case aided post is falling vacant, there is every likelihood of shifting the incumbent from unaided post to the aided post and in which case the permission of the District Educational Oﬃcer/Competent Authority is required and such is the situation, rejection of the competent authority to nominate a member for selection committee cannot be justified. 8. For better understanding, I may refer the amended sub- rules (3) and (7) of Rule 12 of the Rules and it is thus: “In rule 12, (i) after sub-rule (3) the following sub-rule shall be inserted, namely,-- “(3 A) Before ﬁlling-up of the aided teaching or non- teaching posts, the educational agency shall necessarily obtain clearance from the Competent authority, to the eﬀect that, there are no surplus posts in the concerned district, and if there are suitable surplus candidates, they should be deployed against the said vacancies as per the subject requirements. The competent authority shall however obtain the permission from the Government before issuing clearance for filling up of any aided posts.” (ii) for sub-rule (7), the following sub-rule shall be substituted, namely--- “(7) 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 regard 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-rule (4) (5) and (8) shall apply.” 9. Since the G.O.Ms.No.75, dated 23.09.2002 has been withdrawn, the second relief sought for by the petitioner- Institution has become infructuous. With regard to the proceedings issued by the District Educational Oﬃcer, Warangal-3rd respondent, he cannot be found fault in view of the sub-rule (7) of Rule 12 of the Rules wherein the Educational Agency is free to appoint employee/staﬀ to an unaided post as per subject requirements. When a freedom has been given to the educational agency to appoint employee/staﬀ to an unaided post, there is no role to be played by the competent authority. 10. Accordingly, the writ petition is dismissed. No costs. ______________________ B.SESHASAYANA REDDY, J. Date:27th August, 2008. cs ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{BMR}